SCOTUS rules on Travel Ban

[Dill]

(06-27-2018, 10:17 AM)Sociopathicsteelerfan Wrote: "Muslim" is not a race.

As the ban clearly does not target muslims I'd say there's nothing to discount.

Fair points, although I wonder how relevant they are.  Do you think the nations included in the ban should not be on the list?  Do you think there are legitimate reasons a rational person could cite for their inclusion that has nothing to do with religion?

At present, US law defines 12 bases of illegal discrimination. https://www.eeoc.gov/laws/types/

As I understand our legal system, the fact that these bases are all members of a common legal category enables a structural homology between legal cases based upon them, so that laws/policies/rules of evidence applicable to one may be applicable to another.  E.g., if a state legislature designed and passed a sexist law to keep women in the home, without actually mentioning sex or gender in writing the law, then Korematsu vs the US might offer a precedent for declaring that law unconstitutional--even though sex is not a race--if it could be shown that legislators discussed their intent and assumptions about the proper role of women when fashioning the law behind closed doors, but excluded them from all public discussion to claim the law clearly does not target women, just to avoid a constitutional challenge. (Fred or Bels can probably best say whether I have explained this correctly.)

The structural homology is why Roberts could overule Koramatsu on the "rational scrutiny basis" while accepting a travel ban issued by a president who promised to ban Muslims on that same basis (https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf#page=38), and why Sotomayor, in her dissent from Trump vs Hawaii, could claim "stark parallels" between Korematsu and Trump vs Hawaiia and inconsistency in Robert's reasoning. That she and many others make this dissent signals that it is not clear the ban does not target Muslims. https://www.nytimes.com/2018/06/26/us/sonia-sotomayor-dissent-travel-ban.html

As far as who should be on the list, it is not clear that there needs to be a list at all. Given the evolution of the ban, it looks like a symbolic attempt to ban Muslims--basing it on religious discrimination--with little actual reference to national security threats. But it has run afoul of Constitution and courts, hence it has become a hodgepodge of differing threats and rationales. Countries like North Korea and Venezuela are added to show "it's not about religion." So far as I can tell, Venezuela poses no threat to the continental US, and Korea's primary threats are cyber attacks and escalating nuclear confrontation--not the sort of threats contained by travel bans. Countries which could rationally be included given Trump's criteria, such as Saudi Arabia, Egypt, Nigeria, Indonesia, Malaysia, and Pakistan, are not because they have a strong US lobby and strong trade ties. Countries which pose little threat, like Somalia, Yemen and but have no lobby are selected. Some, like Yemen and Somalia, where temporarily dubbed areas of concern under the Obama administration, which imposed limited controls on travel to and from those places. By including them, responsibility for a now much more extreme policy can claim to be shared with the previous administration.

Iran is a special case. It has been a US enemy, though a rapprochement occurred under Obama. That is gone now, since Trump blew up the Iran deal. Iran is still trying to hold to the deal. But if it cannot, then its threat to US interests in the Middle East will likely increase, but not to the US homeland--it is certainly not the threat to the homeland that Russia continues to be. The ban, if anything, simply encourages Iran to act against US security.

So for any one of the countries on the ban list, one could cite a "plausible" reason why travelers therefrom might be a threat to the US, just as one could "plausibly" call Japanese Americans a threat in 1944. But plausibility of that sort cannot/ought not to deflect scrutiny from the actual principle guiding selection, when plausibility alone cannot explain selection. Roberts allowed that to happen. And while he was ruling on Korematsu.