Judgement against Trump ADMITS it looked for ANY reason to call ban unconstitutional!

SO Byron York found something very interesting in the judgement shutting down Trump’s travel ban that is definitely-not-a-Muslim-ban-how-dare-you.

Here it is:

This shows, the Government argues, that EO-2’s primary purpose is secular. The trouble with this argument is that EO-2’s practical operation is not severable from the myriad statements explaining its operation as intended to bar Muslims from the United States. And that EO-2 is underinclusive by targeting only a small percentage of the world’s majority-Muslim nations and overinclusive for targeting all citizens, even non-Muslims, in the Designated Countries, is not responsive to the purpose inquiry. This evidence might be relevant to our analysis under Lemon’s second prong, which asks whether a government act has the primary effect of endorsing or disapproving of religion, see Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J., concurring), but it does not answer whether the government acted with a primarily religious purpose to begin with. If we limited our purpose inquiry to review of the operation of a facially neutral order, we would be caught in an analytical loop, where the order would always survive scrutiny. It is for this precise reason that when we attempt to discern purpose, we look to more than just the challenged action itself. And here, when we consider the full context of EO-2, it is evident that it is likely motivated primarily by religion. We do not discount that there may be a national security concern motivating EO-2; we merely find it likely that any such purpose is secondary to EO-2’s religious purpose.

I know, it’s dense. But look at the bolded statement. It appears as if the ruling says if they just looked at the order, it would be constitutional, so they had to look beyond the order itself.

Uhhhhh doesn’t that sound like they WANT to find it unconstitutional?

And what the heck is an “analytical loop”? It sounds like they’re looking for a specific judgement, and when they can’t find it, they go fishing somewhere else  beyond the text of the executive order itself.

In fact the dissent attacks the order on just this account:

Nowhere did the Din Court authorize going behind the government’s notice for the purpose of showing bad faith. The plaintiff had to show facially that the notice was in bad faith, i.e., not bona fide. The majority’s selective quotations from Din, which conceal Din’s faithful application of Mandel, are simply misleading. Indeed, the impetus for the majority’s approach is revealed when it states, “If we limited our purpose inquiry to review of the operation of a facially neutral order, we would be caught in an analytical loop, where the order would always survive scrutiny.” Ante at 62 (emphasis added). That consequence — that facially neutral executive orders survive review — is precisely what Mandel requires.

In looking behind the face of the government’s action for facts to show the alleged bad faith, rather than looking for bad faith on the face of the executive action itself, the majority grants itself the power to conduct an extratextual search for evidence suggesting bad faith, which is exactly what three Supreme Court opinions have prohibited. Mandel, Fiallo, and Din have for decades been entirely clear that courts are not free to look behind these sorts of exercises of executive discretion in search of circumstantial evidence of alleged bad faith. The majority, now for the first time, rejects these holdings in favor of its politically desired outcome.

The dissent specifically quotes the bold text in the first quote to show that the majority ruling does NOT follow the law when attempting to decipher the intent of the law.

And it accuses the order of doing so for political motivations: “The majority, now for the first time, rejects these holdings in favor of its politically desired outcome.”

So, that ain’t no good. 


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