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The Shadow of Free Speech

In the USA, the first amendment says that mere speech can never make a crime. Such a constitutional right has a penumbra, as the lawyers call it (many a complex case has gone to the supreme court).

Suppose a politically-incorrect remark makes it criminal for you to do what would be legal for you to do if you had not uttered it. Is it the remark that has been made criminal?

Throughout the ruling, Judge Watson concedes there’s nothing about the executive order that would be problematic if not for his interpretation of Trump’s statements made in the months and years prior to issuing it.

If it is illegal for Donald to do for four months what Barack legally did for six, solely because Obama’s speeches about immigration were always impeccably PC whereas Trump’s remarks on the 2016 campaign trail were not, are Donald’s first amendment rights violated? I’ve read plenty about a president’s constitutional right to control immigration under laws that congress had a constitutional right to enact, but what about his right to have uttered a politically incorrect opinion during the previous year? Can the same logic debar every candidate with a history of un-PC remarks from any executive position? Can an otherwise constitutional congressional law be nullified because people on the side that voted for it said un-PC things the day before – or the decade before?

If the ultimate ruling on this were that you guys across the pond could still speak your mind, but only at the cost of making acting on it illegal, then the penumbra of the first amendment would have grown short indeed – which is a surprising way to say it, since it would look to me like your free speech had become a mere shadow of itself.

[Added later] Commenter Chip expressed my post in a sentence:

Clearly, the only lawmakers who can restrict immigration are those who never said they would.

I’m glad all nine supreme court judges are not sure this is what the constitution actually says – and less glad that only three seem able to see at a glance that it is not.

48 comments to The Shadow of Free Speech

  • PapayaSF

    IANAL, but that ruling is so obviously absurd that I expect it to be overturned.

  • PersonFromPorlock

    It may be an ’emanation’ of hate speech laws, though, where one illegal act becomes a different illegal act by reason if its motive; in this case, a legal act becomes illegal by reason of motive. That doesn’t seem very reasonable to me, but that’s modern federal jurisprudence for you.

    The longer-term solution is for congressional Republicans, once the decision is overturned by the Supreme Court, to discourage ad-hoc judicial lawmaking by moving for the impeachment and removal of Judge Watson. They probably won’t, for fear of something or other.

  • Fraser Orr

    Acting on speech is often illegal and the reason why people do things always affects legal outcomes.

    For example, here it is perfectly legal for me to tell my buddy that I am going to kill my wife for the insurance money, but doing it is not legal. Similarly, if I say I am going to kill her for the insurance money and I knock her off a bridge, that has entirely different legal consequences than if I knocked her off a bridge by accident, with no evidence that I did so with malice or aforethought. In one case it is a horrible murder, in the other a tragic accident. The former might end me up in the electric chair, the latter a fundme campaign to help me through my trauma.

    Oh, to be clear, I have no intention of killing anyone for the insurance money or for any other reason… Thought I should make that clear.

    The case with Trump is different. It is a matter as to whether the court has any any right to review an action in which the president has plenary power as granted by congress and the Constitution. It probably does to some extent but has always been extremely deferential to the president in the past. The fact that this specific action has been performed many times before (and in fact is at the core of our immigration practice for years — as any Indian trying for a visa knows) makes the naked political character of the courts here all the more apparent.

    And FWIW, I think that the first amendment with regards to religion is one of the most over stretched, ridiculous interpretations in constitutional law. The purpose of the amendment is completely apparent — preventing the establishment of a national church — in no reasonable sense can that be extrapolated to mean that the government should be entirely neutral to the point of stupidity and blindness to the relative merits of religion. Perhaps it should be, but the first amendment certainly doesn’t demand that it should.

    I predict that the USSC will reverse the lower court, but there are no guarantees.

  • Laird

    OK, I’m going to begin by stating that I think the 4th Circuit decision was wrong and should be overturned, and that Trump was not only within his lawful powers in issuing that Executive Order but that it was a good idea. (And add the obvious disclaimer that this isn’t the place for an extended legal analysis.) Having said all that, I have to say also that you clearly don’t understand either the First Amendment or the basis for the ruling now under appeal.

    First of all, it certainly is possible for mere speech to “make a crime”. If it constitutes an “incitement” to commit a crime, the speech itself can be criminal. And of course it can form the basis for a criminal conspiracy charge.

    Also there is nothing criminal at issue in this case, so the word “criminal” should be stricken entirely from the essay. What is at issue (in the 4th Circuit opinion and all the other lower-court ones) is the constitutionality of Trump’s Executive Order. Unconstitutionality isn’t a crime; it merely invalidates the Order. There is no “violation” of Trump’s 1st Amendment rights; he can say whatever he likes. All that is involved here is the constitutionality of the Executive Order he issued, and whether his previous statements can properly enter into that decision.

    What the 4th Circuit (and lower courts) did was to interpret some of Trump’s previous statements as evidence of an intent to deprive certain people of their constitutional rights (primarily Freedom of Religion and Due Process), and that such intent formed the true basis for his Executive Order. The Order itself was entirely in accordance with statutory law, but the courts held that it is unconstitutional to apply that law in a manner which deprives people of their constitutional rights. Superficially there is some logic to that argument, although I disagree with it as applied here.

    To analogize from 4th Amendment jurisprudence, the Supreme Court has consistently held that “pretextural” traffic stops (the police stopping you for a burned-out tail light, “improper” lane changes, etc., as a pretext for detaining you until they can get a drug-sniffing dog to the site or a warrant issued) is perfectly acceptable; as long as there is a colorable basis for the stop it doesn’t matter that the real reason for it was entirely different. I cannot see why the rule should be any different in this case. Trump’s Executive Order was completely in accord with US law (8 U.S. Code § 1182(f)), and I see no reason why the same rationale should not apply as in the 4th Amendment cases: if the Order is facially valid, it should not be rendered invalid merely because some reason other than the stated one might be questionable. And the fact that the courts are relying upon their own subjective interpretations of statements made during the height of a political campaign rather than at the time of issuance of the Executive Order, and inserting their own interpretation of those remarks in place of the reasons actually stated, makes the ruling doubly suspect.

    Applying a subjective intent standard to presidential actions which are facially proper would be a substantial departure from prior law (I am aware of no other instance in which this has occurred), and in my opinion would be wholly unacceptable. It would render all Presidential decisions subject to second-guessing by judges who are supposed to be interpreting the law, not (as a rule) inquiring into the intent behind it (to the extent “intent” enters into legal decisions it is only in certain criminal cases, and is the province of the jury). I don’t see how the 4th Circuit’s ruling (or that of lower courts in other circuits) can stand.

  • Mr Ed

    PapayaSF, my usual reaction to cases from the western fringes is

    IANAL, but that ruling is so obviously absurd that I expect it to be affirmed by the Court of Appeals for the Ninth Circuit.

  • Fraser Orr (June 25, 2017 at 4:22 pm), I don’t think your analogy holds. Murder is illegal whether you describe your plan to an accomplice beforehand or not, just as it is illegal whether you leave your thumbprint on the weapon or not. Either may affect what evidence convicts you, or whether you even are convicted, but the legal status of the act is unaffected.

    PersonFromPorlock (June 25, 2017 at 4:22 pm) seems to have the right angle on it. PC jurisprudence is indeed eager to suggest that killing someone because you want their wallet is less serious than killing them because you hate their race. Judge Watson’s ‘reasoning’ can indeed be seen as an ’emanation’ – a logic progression – of that.

    (It seems fair, given the argumentation of people who defend this kind of thing, to note that National Socialist legal reasoning was very into this approach; the same acts were crimes or not depending on the Nazi court’s assessment of the perpetrator’s motivation.)

    I share the caution of Mr Ed’s (June 25, 2017 at 4:45 pm), but will hope for the right outcome in the supreme court while I can. What interests me is:
    – does anyone else think the first amendment relevant?
    – will anyone raise it in the hearing?
    – will its penumbra be affected?

  • Papaya:

    The ACA clearly defined the word “state” as it would be used in the law, but the Roberts court still ignored that.

  • Laird

    I’m going to begin by stating that I think the 4th Circuit decision now on appeal to the Supreme Court was wrong, and should be overturned, and that Trump’s Executive Order was not only lawful but also good policy. (And I’m going to add the usual disclaimer that this isn’t the place for an extended legal analysis.) With all that said, I also have to say that you clearly don’t understand either the 1st Amendment or the basis for the 4th Circuit’s decision.

    First, it is entirely possible for mere speech to “make a crime.” If it is an incitement to the commission of a crime the speech itself is criminal. And of course it can form the basis for a criminal conspiracy charge, which doesn’t require the actual physical commission of the crime.

    And there is nothing “criminal” at issue here, so the word “criminal” should be deleted entirely from the essay. All that is involved is the constitutionality of Trump’s Executive Order. Unconstitutionality is not a crime; all it means is that the Order is invalidated. Trump’s 1st Amendment rights are in no way being threatened; he can say whatever he likes. All that is at issue here is whether those statements can properly be considered in making that determination.

    The 4th Circuit concluded that Trump’s previous remarks had made it apparent that, whatever the stated reason, the real purpose of his Executive Order was to deprive some people of certain constitutional rights (primarily Freedom of Religion and Due Process). Although the Order was facially in accordance with statutory law, that law cannot be applied in such a manner as to infringe upon constitutional rights. Although there is logic to that argument, I don’t think it is applicable here.

    To analogize from 4th Amendment jurisprudence, the Supreme Court has consistently held that “pretextual” traffic stops (i.e., where the police stop someone for a broken tail light, or “improper” lane changes, as a mere pretext in order to give them time to get a drug-sniffing dog to the site or obtain a search warrant) are perfectly proper. As long as there is a colorable basis for the stop, the courts will not inquire further into whether the real reason was something entirely different. I cannot see why the rule should be any different here. Trump’s Executive Order was entirely in accordance with the law (8 U.S. Code § 1182(f)), and to the extent he may have had some other (and allegedly nefarious) purpose in mind beyond that which was given, that should be entirely irrelevant as long as there was a legally sufficient reason adduced. Which there was.

    For the federal courts to impose a subjective intent standard onto Presidential actions would be entirely unprecedented (I am aware of no such standard being applied in any other case), and in my opinion wholly unacceptable. It would subject all Presidential decisions to second-guessing by the courts, and as much as I would like to see the “imperial presidency” reined in this is not the way to do it. Such a rule would permit the courts to inquire into the secret intent of the President, which is not their role. (To the extent that “intent” enters into the law it is only in certain criminal cases, and is properly the province of the jury.) The fact that in this case the courts looked at statements made during the height of a political campaign rather than at the time of issuance of the Order, and moreover drew its own inferences from those statements rather than taking them strictly at face value, makes this decision doubly suspect.

    Furthermore, such a rule would create a serious (and unnecessary) “separation of powers” issue, which historically the Supreme Court (quite properly) has been extremely loath to do. It would have the courts intrude into a specific constitutional (as well as statutory) prerogative of the Executive. That would be a constitutional minefield.

    In my opinion the 4th Circuit decision (and that of all those lower courts as well) is both bad law and bad public policy, and likely will be overturned.

  • Laird

    But in any event this is not a 1st Amendment issue!

  • Kevin B

    Laird, which people may be deprived of certain constitutional rights?

    I mean do the people whose application to come to the US might be delayed by virtue of the President’s executive order have any constitutional rights?

  • To analogize from 4th Amendment jurisprudence, the Supreme Court has consistently held that “pretextual” traffic stops (i.e., where the police stop someone for a broken tail light, or “improper” lane changes, as a mere pretext in order to give them time to get a drug-sniffing dog to the site or obtain a search warrant) are perfectly proper.

    And after Heien v. North Carolina, the cops don’t even need that fig leaf any longer.

    I’ve also read that there have been cases that have made all of the following valid reasons for pretextual stops (but don’t have the cases at hand to cite):

    1) Driving well above the posted speed limit
    2) Driving well below the posted speed limit
    3) Driving precisely at the posted speed limit

  • Laird

    Kevin B, I was merely summarizing the gist of the Circuit Court’s argument, not endorsing it. As to whose rights? It’s complicated; read the decision. But (allegedly) some are the rights of the plaintiffs (who have family/friends in other countries), some are those of people in other countries with some sort of a colorable claim to entry here, etc. As I said, it’s complicated, and moreover it doesn’t really matter to the points I was making.

    Ted, I wasn’t intending to get into a discussion of pretextual traffic stops, just using it for analogy. But FWIW, I don’t read Heien v. NC the way you do; I don’t think it’s an expansion of the rule.

  • Fraser Orr

    Niall Kilmartin
    > Murder is illegal whether you describe your plan to an accomplice beforehand or not

    Yes, but killing people is not always illegal, the most obvious examples being accidents where there is no negligence. If you speak a criminal motive it does indicate a criminal culpability no matter whether the circumstances would make the killing action seem to be accidental. As I described in my bridge example.

    In fact if I remember rightly just recently there was a British soldier who went to jail for murder after shooting an enemy combatant in the field (something soldiers are supposed to do) and he was prosecuted because his motive for shooting, betrayed by his words to his comrades, was considered unacceptable.

  • Laird, June 25, 2017 at 5:45 pm, thanks for an interesting analysis. I have some questions (of course, you may be thinking 🙂 ) which you or others may be able to answer.

    “it is entirely possible for mere speech to ‘make a crime.’ If it is an incitement to the commission of a crime the speech itself is criminal.”

    I agree entirely that speech about a crime can ‘make a crime’. What I’m trying to focus on is whether speech about an act otherwise non-criminal can make a crime – mere speech, as I am using ‘mere’?

    “there is nothing “criminal” at issue here … All that is involved is the constitutionality of Trump’s Executive Order.”

    What would the legal situation have been if Trump had ignored the ruling and continued enforcing his order? As the president is not subject to ordinary legal process it may be better to ask, what would the legal situation have been of an immigration official who obeyed an order from Trump to ignore the court and enforce the ban?

    (Trump’s way forward would appear to be easy – subject to the large issues of securing obedience and political consequences of course – if there were indeed ‘nothing criminal here’. IIUC Andrew Jackson provides precedent but only in terms of an example – “John Marshall has made his decision: now let him enforce it” – not as an accepted legal precedent.)

  • Pat

    It seems to me that politicians routinely seek to change the law.
    If not what are they for?
    If so then their promises, explicit or implied, should be accepted as the will of the people, assuming said politicians are elected.

  • Laird

    Some interesting questions, Niall, although they seem to be drifting away from (what I took to be) the original thrust of your essay.

    As to whether “mere” speech can render a non-criminal act criminal, the only examples of that I can think of are perjury and obstruction of justice. If a prosecutor asks you what you had for lunch and you reply “a ham sandwich” when what you really had was tuna, you can be criminally prosecuted for perjury and/or obstruction even though neither sandwich is per se illegal and even though you were not under oath at the time of your statement. (Think not? That’s essentially what happened to Martha Stewart, who was never convicted of securities fraud or insider trading, but merely “obstruction of justice” for “lying” to prosecutors even though her “lies” were about completely legal activities and she was not under oath. And also to “Scooter” Libby, who was similarly convicted of lying to prosecutors in the Valerie Plame incident even though all he did was mis-remember some irrelevant details and was contradicted by his own diary.) Other examples may occur to me.

    And if Trump were to “ignore” the ruling? (I’m glad you quoted Andrew Jackson on that, although as a practical matter it must be remembered that nothing ever came of his comment.) As you noted, the only way in which Trump’s Executive Order can be applied is by a consular or other immigration official. If Trump were to direct his officials to enforce that Order, a court could issue a writ of mandamus or some form of injunction to any specific official and order him to obey the ruling. Were that writ to be ignored (and the Executive Order still enforced) the official would be charged with, and convicted of, contempt of court, for which he could be jailed. But in such a case it would be the official himself who is violating the court order, not Trump, and the order which is being violated is the writ of mandamus (to which that official personally is a party), and not the 4th Circuit’s decision in the case we’re discussing. Also, please note that strictly speaking, “contempt” is not always a crime (although it can be), since (as the courts like to say) the person “holds the keys to his own jail cell” (i.e., he can win his release at any time simply by obeying the court’s order).

    Pursuing that line a little farther, it is a federal crime for a government official to knowingly and intentionally deprive someone of his constitutional rights. (I can’t be bothered to look up the specific citation for that, but I think it’s somewhere in the Civil Rights Act.) So I suppose it could be argued that a consular official, aware of the 4th Circuit’s ruling but still enforcing Trump’s Executive Order in contravention of it, could be alleged to have criminally violated the rights of someone denied entry to the country. But that’s a bit of a stretch, and I would be surprised if it were to occur.

  • Laird

    A clarification on the question of Trump “ignoring” the judicial decision: What’s on appeal to the Supreme Court is the 4th Circuit’s decision, but what the 4th Circuit actually did was simply uphold the lower court’s ruling. And the lower court had, in fact, issued a temporary injunction* suspending operation of the Executive Order. It could perhaps be argued that any consular official who continued to enforce Trump’s Executive Order would be doing so in violation of that injunction, which could be considered contempt. However, in my opinion a contempt charge can only lie against someone who is personally a party to the injunction; in other words, such an official couldn’t be charged with contempt until the court had been informed of his intransigence and had issued an order specifically directed to him, which was then disobeyed. But this is such an unusual situation that I can’t be sure of that.

    * One interesting issue, hotly debated among a certain brand of legal scholar, is whether an injunction can properly be issued which reaches beyond the jurisdiction of that specific court; in other words, whether it can apply to the entire country, as this injunction does. That is a hyper-technical legal argument and I won’d get into it here; I just wanted to note its existence. And frankly, I don’t expect the Supreme Court to weigh in on it; it can dispose of this case in easier ways.

  • bobby b

    Laird called it: There was nothing in the ruling that implied that speech had transformed a legal act into an illegal one.

    The speech at issue was merely used as evidence that the act had been illegal when performed. Fraser Orr partially hit upon this above: If you are being prosecuted because a person has died, and it’s not clear whether the death was accidental or murder, then your previous statement that you were going to kill the person at your first opportunity would not make the death into murder, but it would be evidence that murder had been committed. By you.

    This is only an issue if you believe that Trump’s motivation in making that Executive Order was germane to its constitutionality. The constitutional delineation of powers and duties (to me) leaves the issue of immigration enforcement squarely in the president’s hands, and so even examining Trump’s motivations was improper.

    Jurisdiction in the case was established by naming US citizens as plaintiffs, claiming that their rights – not the rights of potential immigrants – had been abridged by Trump’s rule. Non-citizens in foreign countries do not have standing to claim Constitutional protection in the U.S.


  • bobby b

    Niall Kilmartin
    June 25, 2017 at 7:24 pm

    “What would the legal situation have been if Trump had ignored the ruling and continued enforcing his order?… IIUC Andrew Jackson provides precedent but only in terms of an example – “John Marshall has made his decision: now let him enforce it” – not as an accepted legal precedent.)”

    But, in the end, the government DID enforce Marshall’s order, primarily because it had been established and accepted for thirty years (since the Marbury v. Madison case) that it was a proper role of the Supreme Court to review and overturn legislation that violated the Constitution.

    There was loose talk immediately after the ruling suspending Trumps EO that Trump would be justified in ignoring the ruling, but that went nowhere, because that very arguably would have been an impeachable offense on its own. The proper jurisdiction of the court’s injunction against the EO was certainly up for argument, but there is an established process for raising that question, and Trump is following it now.

    Jackson’s statement was bluster, somewhat like Stalin asking how many divisions the Pope had. The Supreme Court has no enforcement provisions except for our acceptance of constitutional rule, but that has proven to be a very strong one.

  • Laird

    “so even examining Trump’s motivations was improper.”


  • Lee Moore

    I feel sure Laird is right – Trump’s speech is not illegal, it’s merely (perhaps) evidence of intent. In the same way, if Fraser’s wife tumbles from a bridge, any remarks he may have made beforehand, or afterhand, about tipping her off the bridge for the insurance may be evidence of intent.

    The question of bad motive in legislators or executives (perhaps evidenced by speech) seems to be a rather complicated in American law. Sometimes the judges say things like “a tax on yarmulkas is a tax on Jews” meaning that if the tax hits Jews it doesn’t matter whether that was the legislators intent. It’s still unlawful discrimination. At other times courts discern animus against gays and that’s enough to invalidate a law. Ditto a racial discriminatory motive can invalidate voting districts, when the absence of such motives wouldn’t. This is why Republican gerrymandering is illegal, but Democrat gerrymandering is not. The only common thread I am able to discern is that motive and animus in a legislator or executive is legally relevant if it enables the court to reach a conclusion that the New York Times would approve of. Otherwise the courts do not think the legislator’s or executive’s motive is legally relevant.

  • Jacob

    Leaving aside for a moment the interesting legal issues.
    The EO was supposed to delay issuing of visas for 3 months until new vetting procedures have been established. The 3 months have passed, so, I assume, the vetting procedures are in place.

    The issue is moot and irrelevant. The SC should dedicate it’s precious time to other cases.

  • bobby b

    “The issue is moot and irrelevant. The SC should dedicate it’s precious time to other cases.”

    No. Y’all could use similar tactics in many other situations, and then, as here, simply claim that the issue is moot and not worth the resources once time has passed, effectively usurping a valid presidential power.

    The issue isn’t the travel ban at this point, it is the extent of presidential power that the Constitution confers. That issue must be settled by the USSC, so that Trump may do many many things to you that are far worse in the future. In the long run, y’all should not have sent Trump to the USSC to get a written opinion on the extent of his powers. That was a tactical mistake that will likely empower Trump.

  • I’ll use an analogy to indicate how I understand the main part of Laird’s analysis (Laird, June 25, 2017 at 5:45 pm). This may prompt agreement that I do understand it, or comment that I don’t yet, or further useful discussion.

    Suppose the same judge had issued a warrant for Sarah Palin’s arrest as some kind of accomplice in the Gabrielle Gifford’s shooting, based on her “cross-hairs” chart. On the one hand, this would be a fairly direct assault on her ability to engage in ordinary political rhetoric. More generally, it would have a “chilling effect” on a certain class of free speech. On the other hand, that could not be made the precise subject of legal challenge. As long as the ridiculous idea of the chart being evidence of murderous involvement were taken seriously by appellate courts, the discussion is about an unprotected category of speech. The moment that claim falls, the issue is over. Either way, the effect on free speech never enters the legal debate.

    We all recognise Judge Watson’s ruling as radically bad. I understand Laird’s argument as similar to the above. The case is even worse in that no-one doubts Gabrielle Gifford was the target of a crime whereas believing in the very existence of the alleged constitutional violations that Judge Watson cited needs the eye of PC faith. But while a pretence of belief survives in appellate courts, any speech alleged as evidence is unprotected – the question of whether it threatened them can be raised; the moment that dies, case closed.

    I remain of the opinion that if the case stands, it makes sense to say it will have a chilling effect on free speech, and will shorten the first amendment’s penumbra significantly. The above shows how far I understand Laird’s explanation of why he does not expect that to figure in the current case (and maybe not in any such case).

  • Jacob

    “That was a tactical mistake that will likely empower Trump.”

    You don’t yet know the USSC ruling. It may turn out “wrong” (against Trump).
    I always say that all judicial decisions are like unguided missiles – you never know where they will hit.
    Judges and trials are best avoided. Flee from them like you would flee the plague.

    Of course, all this EO was not about immigrants or security. It is all grand-standing and theater. It was a Trump stunt (though within his authority), and his opponents hit back by invoking the Judges.

    It would be better if Trump concentrated on substance, and gave up on the theater, in this case.

  • Jacob

    I don’t think free speech is an issue here.

    Presidents and Central Bank Governors, etc. need to be careful in their speech. Their words might have big consequences (not necessarily criminal), and not always good or intended. So, their status requires prudence, restraint and limitation. These limitations are fair and logical and come with the job, and in no way contradict the Constitutional right to free speech of ordinary people.

  • Alisa

    Niall, I still fail to see your original point: not only is Trump not on trial here (as an individual or as President), there isn’t even a trial. This is not a criminal matter – if anything, it can possibly be seen as a civil dispute (the lawyers here will correct me, I’m sure – and I have my doubts on this anyway), in which the speech in question is simply used as supporting evidence for the claimants. Just as if a landlord said something before leasing his property to a tenant, and the things he said would come up and be used as evidence in a later dispute between the two – which by no means would have anything to do with the landlord’s right or lack thereof to say whatever it was that he said.

  • Lee Moore

    “That was a tactical mistake that will likely empower Trump.”

    Based on my deeply shallow understanding of American law, I would think it rather unlikely that SCOTUS will deliver a knockout blow in favour of Trump. If he wins (which is entirely dependent on what Justice Kennedy has for breakfast on the day) he’ll likely win on a narrow procedural point, like whether the plaintiffs have standing. Chief Justice Roberts even if he’s on a 5-4 conservative winning side, won’t want to go anywhere near the politically controversial issues of whether Trump’s speech can properly be used as evidence, precisely what the President’s authority over entry is, and whether district courts can issue nationwide injunctions. We’re only likely to get these questions answered if Trump loses. And they”ll probably be answered in one of Justice Kennedy’s blockbuster rambles, so no one will have the faintest idea of the rationale for the decision. Including Justice Kennedy. Though if Roberts sees it’s going to go 5-4 against Trump, then he may hop in and make it 6-3 so he can write an opinion avoiding all the sexy stuff. Probably along Jacob’s suggested lines that it’s moot.

  • Mary Contrary

    That doesn’t read as shallow to me, Lee Moore, that strikes me as very insightful.
    My thanks to Laird as well, for unpicking so clearly the deeply mixed up misunderstandings of OP.

  • Alisa, June 26, 2017 at 8:52 am, I used ‘criminal’ above in the common colloquial sense: what a person can legally do is not criminal and what a person cannot legally do is ‘criminal’. There is a complex legal taxonomy of criminal versus civil, crime versus misdemeanour, constitution versus enacted law, malum in se versus malum prohibitum, etc., etc. – with which I did not want to clog up asking the question though it is of course relevant to the technicalities of any answer.

    Were the ruling to stand,

    – should we expect a chilling effect on politicians’ willingness to engage in un-PC speech, for fear that policies they could otherwise pursue without legal challenge will be block-able?

    – would there be any way of resisting that effect under the first amendment?

    I’ve received a lot of useful information and analysis, mostly (it seems to me) on the second question and on the technical aspects of why the answer is ‘no’ for the current case.

  • Richard Thomas

    Sounds like the judge has been reading Snopes. Very disappointed in the political bias in that otherwise useful site.

  • Paul Marks

    People such as Judge Watson do not care what the law is, or what the Constitution says – they care about what people say at the elite social events they go to. Donald Trump is “vulgar my dear”, so his actions should be overturned (regardless of the law and the Constitution).

    Yes the Supreme Court has just put a stop to this nonsense (nine to zero lifting the orders of Watson and co – till the full hearing latter this year), but demented judges ruling to please people at cocktail events should not happen in the first place.

    Political Judges need to be elected – and subject to free re election. If they want to play politics they must stand for election – and regularly face the voters.

  • staghounds

    The 9th circuit doesn’t have to rule on the appeal, leaving the lower court order intact forever.

  • Paul Marks (June 26, 2017 at 4:02 pm), I’ve taken the liberty of editing your original text, which read ‘Barack Obama is “vulgar my dear” ‘ to ‘Donald Trump is “vulgar my dear” ‘. Personally I think Barack is vulgar, and the people who went into ecstasies in 2008 over the alleged perfection of his trouser crease – and his every other attribute – are more vulgar still, and I also think Barack’s actions between then and January this year should be overturned as far as possible. I suspect you agree, but hope my edit reflects your intended text, and hope you agree that that was sufficiently indisputable from its context that you can pardon the liberty I took. (Please do not hesitate to say if not.)

    9 to 0 is good news, although I note the judges just had to exempt one category – can’t let “vulgar Mr Trump” have it all, can we?

    From now to October, when they will finally decide, is 4 months. Trump’s ban was intended to run – and so perhaps will now run – for 4 months. Although Lee Moore (June 26, 2017 at 10:07 am) was perhaps too pessimistic in his details, maybe his suspicion there would be some dodging has content.

  • Laird

    Well, the Supreme Court has issued a ruling, of sorts. In a per curiam (unsigned) opinion it granted certiorari (meaning that it will hear the appeal on its merits in October), left the injunction in place for certain groups of people (those “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States”) and lifted it otherwise. It didn’t say anything at all about the merits of the case, limiting its discussion to a “balancing of the equities” analysis to determine who is “harmed” by the injunction and who is not. So a partial win for Trump: a large class of persons is covered by the Executive Order, and his administration can proceed with the reviews it contemplates, but some group of persons is excluded from it. A Solomonic decision.

    I found very interesting the dissent* by Thomas, Alito and Gorsuch, who would have lifted the TRO entirely, making the (thoroughly rational) observation that the Administration will be forced to make a lot of difficult decisions as to who is covered by the remaining TRO and who is not, which will undoubtedly lead to a lot of litigation. And they specifically noted that “the Government has made a strong showing that it is likely to succeed on the merits — that is, that the judgments below will be reversed.” So Trump would seem to have at least 3 votes going in.

    This is going to remain interesting for a long time to come! My biggest concern is that by the time the Court hears the arguments and is ready to issue an opinion, events (and the passage of time) will have rendered the matter moot. And this is an issue which really needs to have a definitive resolution.

    * I always find dissents to per curiam opinions interesting!

  • Alisa

    Laird, why are they waiting until October?

  • Laird

    Because that’s when the next session begins. Today is the last day of the current session.

  • Laird

    Speculation is rampant that Kennedy will retire, perhaps as early as today. If that happens, and Trump can get his ass into gear and nominate a successor, that should bolster his chances in October!

  • Alisa

    Yep. But as you say, this is going to drag on only Allah knows for how long. I wonder how many Trump voters will know better than to blame him instead of the courts.

  • bobby b

    June 26, 2017 at 5:32 pm

    My biggest concern is that by the time the Court hears the arguments and is ready to issue an opinion, events (and the passage of time) will have rendered the matter moot.

    Depends on what you consider “the issue” to be.

    The travel ban issue was mooted almost immediately. The real issue, in my mind, is the power of the executive – as explicitly set out in the Constitution – to decide such matters versus the power of the judiciary to overrule that power.

    That issue will never be moot, and needs to be decided. The Ninth was strongly in favor of Obama’s exercise of that power, and seemed to only reconsider once Trump was elected. To me, that is a clear unconstitutional usurpation.

  • Laird

    Yes, bobby b, that is indeed “the issue”, writ large. Subsidiary issues include whether the judiciary can properly inquire into subjective “intent” when determining the constitutionality of a facially lawful executive action; how much deference is due the executive as a “separation of powers” matter; whether lawful residents of the US possess some sort of “derivative” constitutional rights with respect to their relatives or associates resident in other countries; and whether the federal courts can properly enjoin executive actions on a nationwide basis in the interest of “uniformity”. For starters.

    But with respect to your comment about the powers of the executive being “explicitly set out in the Constitution”, to which specific provision(s) are you referring?

  • Chip

    Clearly, the only lawmakers who can restrict immigration are those who never said they would.

  • bobby b

    June 27, 2017 at 2:49 am

    But with respect to your comment about the powers of the executive being “explicitly set out in the Constitution”, to which specific provision(s) are you referring?

    No, I’m not claiming there is some hazy Article Z that says specifically that the Courts may not interfere with Executive Orders regarding immigration and Muslims.

    I refer to the general delegation of duties and powers as set out in Articles 1, 2, and 3. From there we get our framework of deference between branches that allows each branch to carry out its assigned duties.

    Article 1, Section 8(4) sets out that the legislative function – Congress – controls the rules of immigration. (“The Congress shall have the power . . . To establish an uniform Rule of Naturalization . . . “)

    Article 2 establishes and defines the Executive branch, which is charged with executing the laws and goals established through the legislative process.

    Article 3 defines and delimits the judicial branch. Although it only loosely describes the functions of this branch, it does not give it power to legislate on its own. A power conferred in the Constitution resides exactly – and only – where defined – and nothing in the Constitution enables the judiciary to substitute its own legislative judgment in place of the other two branches.

    The Courts may examine cases and controversies regarding how those laws might impinge on the Constitution, but that is the extent of their power.

    When the Ninth sought to examine Trump’s inner motivations in choosing to carry out the laws concerning immigration, they overstepped the bounds of the power granted to them. When they decided to examine the motivations behind Trump’s order – when they in effect ruled that Obama or Clinton could enact the exact same words in an EO because their motivations would have been different – they were substituting their own preferences instead of examining for constitutionality.

    We have this unelected branch of government that has decided that its power encompasses judging not just the constitutionality, but also the advisedness, of our laws. This isn’t the balanced system our Constitution enables. That’s not their job.

  • bobby b

    (Added later:)

    I said above, “that issue will never be moot, and needs to be decided.” That was actually somewhat wrong.

    The issue has been decided, time after time, by the USSC. The Supreme Court has, since the late 1800’s, held repeatedly that the judiciary should grant near-total deference to the legislative function in matters concerning immigration. The Court has made it clear that such questions are “political questions”, and are the province of the legislative and executive branches. The Court has talked about the plenary power of those branches to decide such matters, without needing the approval of the judiciary. The basic caselaw in this area – Ping v. U.S., Ting v. U.S., and Ekiu v. U.S., all decided in the late 1800’s – remains the law, and has not been overruled, until the Ninth decided that Trump was not the proper person to whom to defer.

    In short, the Constitution granted legislative and executive authority in Articles 1 and 2, and not in Article 3, but the Article 3 people think they’d do it better.

  • bobby b

    If anyone really wanted to delve into this issue, there’s an excellent paper here, from 2009, entitled “Plenary Power: Should Judges Control U.S. Immigration Policy?” by the Center for Immigration Studies.

    If anyone wonders about the biases of this organization, their motto is “Low-immigration. Pro-immigrant.”

  • Chip (June 27, 2017 at 5:52 am): “Clearly, the only lawmakers who can restrict immigration are those who never said they would.”

    While I’m grateful to Laird, Bobby and others for much useful information and comment, Chip wins the thread – for my money – with a most succinct formulation of the point.

  • Laird

    I agree with all of that, Bobby. My question related to your use of “explicitly”. Apparently you were using the word figuratively! 😀

  • Alisa


    Chip wins the thread – for my money – with a most succinct formulation of the point.

    And now I see it too 😛