Archive for SCOTUS

In What Is The Supreme Court Interested?

Posted in Law & Justice, Social & Political with tags , , , , , , , on June 26, 2017 by xaipe

Caveat emptor: I am not now nor have I ever been a lawyer.

The Supreme Court today allowed parts of the Executive Order (EO) that restricts travel from 6 largely Muslim nations to be enforced in part. Essentially, the Court did two things. It acknowledged concerns by opponents & is allowing those with direct ties to United States citizens to continue to enter the country. Additionally, the Court is allowing enforcement of the EO against those who have no ties to United States citizens.

That’s all well & good, but the larger question should be framed differently: what is the Court’s interest in hearing this case?

It seems the case should be moot. The 90 days originally requested by the EO are gone, even from the second EO effective date. Further, it seems the Administration’s claims have little merit, i.e. these EOs speak directly to important national security concerns, but the Administration has not moved forward with the extreme vetting they requested back in January.

POTUS originally claimed (& still does claim) that this EO would:

“[F]or a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries — each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States — would be detrimental to the interests of the United States.”

It seems to any casual observer, however, that this statement by the White House is false. This EO has been mired in the courts for five months at this point, yet the Administration has not rolled out any enhanced or “extreme” vetting procedures.

Either the White House is being disingenuous when it says that this EO is temporary “while existing screening and vetting procedures were under review,” or it completely lacks concern for national security.

One would assume that, this being an incredibly important issue for the Administration, regardless of the position of the various federal courts, the Administration would have began the review of existing screening & vetting procedures immediately. This “extreme vetting” was said to be entirely necessary for the security of our nation & the safety of its inhabitants.

As we all know, however, this Administration has not rolled out any enhanced or extreme vetting procedures whatsoever. They haven’t even indicated that they’ve begun the process!

According to The Weekly Standard, no such policies or procedures are forthcoming, despite repeated claims that the EO is temporary to allow time to implement these extreme vetting policies that are (allegedly) so crucial to our security. The tweets from POTUS himself seem to also suggest that the EO itself is the device that will enhance our security, as he continually says that we need this ban to be removed from the courts so that we can be safe.

The White House has had ample time to implement extreme vetting if that were truly what this is about. Having apparently done absolutely nothing to institute extreme vetting, the argument that the EO is necessary for the security of the county doesn’t hold. 

Regardless, the case before the Court should be a moot issue because the time requested by both the original and the second EO has come & gone (additionally, the 120 days ‘pause’ requested for the refugee program has passed regarding the first EO). The lawyers responding to the government cited this issue in brief. The government responded further by having the White House change the effective date of the EO so that it doesn’t go into effect until the injunction is lifted. In their decision, the Justices noted:

The memorandum further provided that, to the extent necessary, it “should be construed to amend the Executive Order.” Ibid. The Government takes the view that, if any mootness problem existed previously, the President’s memorandum has cured it.

Further, the Court directed both parties to respond to the question of whether or not the case is moot as of June 14, 2017, to be heard during argument in October (this because the second EO is what’s under consideration, with an effective date originally in March).

The concerning issue for me is their interest in hearing this case at all. The case, on its face, seems to have no relevance anymore. However, the Justices will only hear argument about the moot question in October. Further, in a separate “concurrence,” Justice Thomas, joined by Justice Alito & Justice Gorsuch, is of the opinion that the government has a likelihood of succeeding on the merits of the case, i.e. The Court will ultimately strike down all challenges & decide for the government. 

I’m not sure how the government’s case does succeed on the merits. As I argued above, the behavior of the Administration belies any real interest in national security. The Court further notes in the decision that the Administration is free to conduct its review of vetting procedures, “if it has not already done so.” It seems to me the Court is cognizant of the national security issues, but I don’t believe they’ll brook any attempt to play in this area. If the Executive hasn’t competed & implemented their review or tries to expand the timeframe of the EO, I don’t see the Court being pleased.

As an aside, I think there is an argument to be had with the finding regarding refugees. The Court applies the same standard for visa waivers to the refugee program. It seems unlikely that people seeking refugee have bona fide relationships with US citizens, & while no one questions that no alien has a constitutional right to enter this country, one might still suggest that human beings fleeing inhuman treatment at least might have the right to be heard.

Regardless, I’m very interested to see where this goes. If the courts go too far toward Thomas & Gorsuch, we will see a further erosion of public trust in the institutions of democracy. These justices trend toward syssiphean feats of logical acrobatics to turn the law away from the People & towards corporations & moneied interests. At least that’s my opinion. 

The clock starts June 29, 2017. Mark your calendars for September 26, 2017. We’ll see what happens in the 90 days & beyond.

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