Addressing the government’s contention that the text of the executive order was religiously neutral because it applied to people from six countries regardless of their religion:
The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. … It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the Government does, that it does not.
Addressing the government’s suggestion that the court should rely only on the text of the executive order to evaluate its purpose:
Only a few weeks ago, the Ninth Circuit commanded otherwise. … The Supreme Court has been even more emphatic: courts may not “turn a blind eye to the context in which [a] policy arose.”
.. Suggesting why the government wanted the court to stay focused on the text of the executive order:
The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.
.. After extensively quoting President Trump:
The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” … The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
Can a Free Mind Survive in Trump’s White House
Colonel McMaster had spent the first two years of the war at Central Command under General John Abizaid, trying to get their boss, Donald Rumsfeld, the Defense Secretary, to acknowledge that America was fighting an insurgency in Iraq. Rumsfeld refused to admit it, because it went against his high-tech approach to the global war on terror. He would fax McMaster pages from Che Guevara’s memoirs to prove that Iraq didn’t fit the classical definition.
.. McMaster believed that a counterinsurgency strategy—putting the focus on securing the population and bringing economic development, not just killing the enemy—could turn things around.
.. He sent his troops into the city and kept them there, establishing connections with local leaders and Iraqi Army units, gathering intelligence on the jihadis, providing security in the streets, and showing that the Americans—appearances throughout the country notwithstanding—were not abandoning Iraq to its warring factions.
.. it failed strategically because it could not resolve the basic struggle for political power between sectarian groups. As McMaster told me again and again, counterinsurgency is eighty per cent political.
.. He could also be tough on his men, who did not universally love him.
.. McMaster was too intellectually rambunctious for his own good.
.. Lieutenant General McMaster has a lot of faith in American power, especially military power.
.. I imagine that he would shake his head over the conspiracy theories about Muslims that held Flynn spellbound.
.. I wasn’t surprised to learn from a mutual friend that McMaster considered his new boss’s ban on refugees and immigrants from seven Muslim-majority countries to be heinous and self-defeating.
The national-security adviser has to master three fundamental things.
- He has to stay on top of fast-moving events around the world while helping to develop long-term American strategy across regions and issues.
- He has to allow the views of the key national-security officials in Washington to reach the President in an honest and independent way.
- And he has to win the trust of the President himself
.. Will he have the bureaucratic skill to outmaneuver the long knives of Steve Bannon and his shadow National Security Council?
Trump’s ‘So-Called’ Judgment
President Trump can’t seem to control his impulse to question his critics’ legitimacy.
.. Andrew Jackson reportedly said of the chief justice that “John Marshall has made his decision; now let him enforce it.” Jackson vetoed reauthorization of the Bank of the United States because he believed the Constitution did not give Congress the power to create a bank, despite the Supreme Court’s decision to the contrary in McCulloch v. Maryland (1819).
.. Franklin D. Roosevelt accused justices who struck down his New Deal of living in the “horse-and-buggy” era and acting “not as a judicial body, but as a policy-making body.”
.. But if presidential attacks on the courts are nothing new, the history also underscores the smallness of Mr. Trump’s vision. Jefferson, Lincoln and FDR knew when to speak and when to keep silent. They invoked the great powers of the presidency to oppose the Supreme Court only when fundamental constitutional questions were at stake: the punishment of political dissent; secession and slavery; Congress’s power to regulate the economy.
.. Mr. Trump is upset about losing a minor procedural test of a temporary executive order. If he doesn’t learn to be more judicious, we’re in for a long four years.
The Ninth Circuit Just Issued a Dangerous Ruling against Donald Trump’s Immigration Order
Critically, the Trump administration issued a significant executive order (and then defended it in court) without laying any real factual foundation for its finding. Next, the administration enforced the order in a haphazard and unnecessarily cruel manner, initially including even green-card holders in its scope.
By slamming the door (at least temporarily) in their faces, it created a crisis atmosphere that not only ramped up the political stakes, it told the court that the administration didn’t exactly know how to interpret its own order. This invites judicial meddling.
.. Second, the court held that it had the constitutional authority to review and determine the legality of the order. This is the least problematic aspect of the court’s ruling. I don’t agree with the administration’s assertion that it has “unreviewable authority
.. Fourth, the court cracked open Pandora’s Box — noting that it will likely consider Trump’s campaign statements in determining whether the executive order violated the Establishment Clause. While it didn’t rest its order on Trump’s repeated claims that he intended to implement a Muslim ban, it did say this: