leungy18

Intent is a factor in the constitutional question.

Supreme Court ruled in 1971 in Lemon v. Kurtzman that there were three tests that any statute had to fulfill to comply with the establishment clause:

1. The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
2. The principal or primary effect of the statute must not advance nor inhibit religion. (Also known as the Effect Prong)
3. The statute must not result in an "excessive government entanglement" with religion. (Also known as the Entanglement Prong)

The Purpose Prong has been used many times by the judiciary to evaluate the intent of a particular government official -- i.e. the intent of the statute has to be secular in order to be constitutional.

Repeated statements arguing for a "Muslim ban" doesn't appear to demonstrate secular intent. Nor does it help to compare your new EO to your old one.

leungy18

I think there's a clear pattern of government officials implementing irrational policies -- whether it's TSA security theater or travel bans or confusing CBP procedures -- so they can tell the masses that they are doing something against an exaggerated threat.

This trend will no doubt continue under a so-called populist administration.

Immigrants, students, tourists, and business travelers alike will continue to be on the short end of the stick.

petaluma1

trump's words are coming back to haunt him in more than the EO matter also.

GUWonder

Due in largest part to information about this EO coming via the following twitter account

https://mobile.twitter.com/alt_uscis?lang=en

the government has attempted to get Twitter to turn over information about the user(s) of that Alt_USCIS Twitter account.

Take it as a sign that the account has been a gathering and distribution point revealing the operations of the government.

http://mobile.reuters.com/article/topNews/idUSKBN1782PH

TheBOSman

A wonderful case of the Streisand effect.

GUWonder

Without a doubt, or I wouldn't have even had it brought to my attention.

The government could have frustrated a lot more Muslim's US entries (than is already the situation) if they hadn't decided to make a big show about ban implementation. The show itself compromises the ability to operate on the down-low.

petaluma1

Here

Surprise, surprise.

zitsky

No, it's no surprise.

GUWonder

The 4th Circuit Court of Appeals is going to be en banc today on this matter. While one judge has recused himself from the case (as he's too close to the Admin's legal team), it is not likely to materially change anything in favor of the Admin.

I am anticipating another defeat for the Admin on this matter, and attacking the 9th Circuit just won't do it this time.

lonelycrowd

I hope you are right. I thought the ACLU attorney sounded weak at times, whereas I thought the government lawyer did about the best job he could have, granted that he had a uniquely challenging client to defend. I would have felt a bit better if there had been more pushback when the judges kept posing hypotheticals that presupposed a certain degree of "face validity" to the order, both with respect to security concerns and the supposedly continuing need to pause non-waiver-eligible cases to free up consular staff time to complete the review process.

Both sides and the judges kept referring to the pause as "temporary" and intended to be 90 days in duration, which I found surprising. Has the administration in any way backed off the threat of indefinite exclusion for citizens of countries that are unable or unwilling to supply additional information to supplement the current vetting procedure? I am unaware of any such change in the position of the White House or State Department.

Xyzzy

Of course the administration hasn't backed off of the 'temporary' nature of this -- the whole goal is permanency. But they can't admit that. If it really had been intended t be 90 days while they figured things out they'd have already done all of their research and announced whatever the new policy is to be. It's been well over 90 days already. Their solution is already well understood. They just have to find a way that they can sell it to the courts. Aye -- there's the rub.

Boggie Dog

http://ntknetwork.com/aclu-lawyer-sa...llary-clinton/

Scratching my head!

Xyzzy

Clinton isn't n record in favor of a Muslim ban. Trump is. The courts found that his comments were germane.

Boggie Dog

Which courts, the one hearing argument today or others on prior days.

MSPeconomist

Are you kidding? I realize that the ACLU is generally a liberal organization, but how can a supposedly competent lawyer make this argument with a straight face? Have we abandoned any pretense of "rule of law" versus the politics of the situation? That's outrageous.