Trump's success chances in Supreme Court
I'm neither a lawyer, nor a US citizen, thus these are just opinions. But, I think I have a decent grasp on these things. Open to criticisms of course.
Anyway, I think Trump will lose in supreme court, but not for the reasons anyone is spouting on Twitter. Firstly, whether Trump called it a Muslim Ban or not is irrelevant. It is a ban, even if only a temporary one. Permanence is not something inherent in a ban. The inclusion of the word ban also doesn't make it worse for Trump's chances either.
I also don't think Trump's Tweet's will materially impact a trial. They might serve to reinforce character, or back up motivations. But, if they are in contrast to the evidence provided they will not play into a ruling at all. Basically, if the evidence doesn't support either conclusion, the Tweet's might sway judges one way or another, but honestly, I don't think anyone will be on the fence on this one.
Some have said this will be a case to test the extent of the President's powers. I don't believe that to be the case at all. Supreme Court judges are generally well respected, well educated and long serving members of the Judicial branch, and they know the law as well as just about anyone. The role of a judge is generally about interpreting the words of the law and applying them to a given case. And Supreme Court ruling frequently have impacts which can extend well beyond the case at hand. Even "GOP" Supreme Court picks understand that how this verdict is judged could inadvertently make the office of the president more powerful than they or the constitution intended.
In other words, Judges aren't really partisan politicians. There is no such thing as a ruling which only benefits Republicans or Democrats. The more case law defines how laws should be applied, the more easily it can be used as a blunt weapon and turned against the other parties. Calling a Judge a Republican or Democrat is generally something determined by how they tend to stand on certain key areas and how those stances align with a given parties stance. I don't think you'll find a Republican or Democratic Supreme Court pick which has never ruled in a way which would be against the party they are associated with.
OK, pre-rant done. Onto the topic at hand. I think that the only merit for staying the executive order is on the grounds that it is unconstitutionally discriminate. On this topic, I think the EO has a chance of being killed by the Supreme Court. It has been brought up time and again that Trump has the power to enact such a ban. But, while the President may have numerous powers, constitutional law is what grants those powers and sets absolute limits upon them. In other words, there are some things that Trump can never do legally without modifying the constitution.
In the EO at hand, the problem is that it claims these countries have insufficient vetting practices in granting Visas to people coming into the US. But, some people are getting exemptions based on faith and other criteria. This is where we have a conflict. If this isn't about unconstitutional discrimination, the ban should either not have these exemptions, or should provide hard facts for why certain groups are being permitted and certain other ones aren't.
And is where this will likely hit a wall. That Obama's administration identified these countries doesn't justify the subsets being blocked or allowed. Now that it is being taken to court, I imagine the courts will be expecting relevant (ie: not outdated) and verifiable facts both on why these countries were singled out and why these specific sub-groups of people were singled out. Being unable to produce evidence to back up these actions leaves little room to interpret them as anything but discriminatory.
Maybe... maybe Trump has that information. He certainly hasn't shared it publicly... nor even claimed to have anything of the sort for that matter. If his administration has only what he boasts about on Twitter then it should be dead in the water.
But, if it isn't deemed unconstitutional, then I don't think the Supreme Court will see that they have any right to block Trump from this.
What is really interesting is what happens if Trump loses?
Anyway, I think Trump will lose in supreme court, but not for the reasons anyone is spouting on Twitter. Firstly, whether Trump called it a Muslim Ban or not is irrelevant. It is a ban, even if only a temporary one. Permanence is not something inherent in a ban. The inclusion of the word ban also doesn't make it worse for Trump's chances either.
I also don't think Trump's Tweet's will materially impact a trial. They might serve to reinforce character, or back up motivations. But, if they are in contrast to the evidence provided they will not play into a ruling at all. Basically, if the evidence doesn't support either conclusion, the Tweet's might sway judges one way or another, but honestly, I don't think anyone will be on the fence on this one.
Some have said this will be a case to test the extent of the President's powers. I don't believe that to be the case at all. Supreme Court judges are generally well respected, well educated and long serving members of the Judicial branch, and they know the law as well as just about anyone. The role of a judge is generally about interpreting the words of the law and applying them to a given case. And Supreme Court ruling frequently have impacts which can extend well beyond the case at hand. Even "GOP" Supreme Court picks understand that how this verdict is judged could inadvertently make the office of the president more powerful than they or the constitution intended.
In other words, Judges aren't really partisan politicians. There is no such thing as a ruling which only benefits Republicans or Democrats. The more case law defines how laws should be applied, the more easily it can be used as a blunt weapon and turned against the other parties. Calling a Judge a Republican or Democrat is generally something determined by how they tend to stand on certain key areas and how those stances align with a given parties stance. I don't think you'll find a Republican or Democratic Supreme Court pick which has never ruled in a way which would be against the party they are associated with.
OK, pre-rant done. Onto the topic at hand. I think that the only merit for staying the executive order is on the grounds that it is unconstitutionally discriminate. On this topic, I think the EO has a chance of being killed by the Supreme Court. It has been brought up time and again that Trump has the power to enact such a ban. But, while the President may have numerous powers, constitutional law is what grants those powers and sets absolute limits upon them. In other words, there are some things that Trump can never do legally without modifying the constitution.
In the EO at hand, the problem is that it claims these countries have insufficient vetting practices in granting Visas to people coming into the US. But, some people are getting exemptions based on faith and other criteria. This is where we have a conflict. If this isn't about unconstitutional discrimination, the ban should either not have these exemptions, or should provide hard facts for why certain groups are being permitted and certain other ones aren't.
And is where this will likely hit a wall. That Obama's administration identified these countries doesn't justify the subsets being blocked or allowed. Now that it is being taken to court, I imagine the courts will be expecting relevant (ie: not outdated) and verifiable facts both on why these countries were singled out and why these specific sub-groups of people were singled out. Being unable to produce evidence to back up these actions leaves little room to interpret them as anything but discriminatory.
Maybe... maybe Trump has that information. He certainly hasn't shared it publicly... nor even claimed to have anything of the sort for that matter. If his administration has only what he boasts about on Twitter then it should be dead in the water.
But, if it isn't deemed unconstitutional, then I don't think the Supreme Court will see that they have any right to block Trump from this.
What is really interesting is what happens if Trump loses?
Comments
Post a Comment