The Jeff Cumberbatch – A Hostile Environment

The three-ring circus currently playing in Washington to nominate an individual to replace the retiring Justice Kennedy appears to be less about the jurisprudential acuity or judicial temperament pf the candidate and to be more about their politic and degree of opposition to liberal values such as those expressed in the Roe v Wade decision. This confirmed the female’s autonomy over her body by finding a right to individual privacy in the Constitution. It is tantamount to what the conservative jurist Robert Bork once termed the “political seduction of the law” at a time when the boot of Congressional power was firmly placed on the other foot.

The decisions of the US Supreme Court (hereafter the SCOTUS) are not merely exercises in legal reasoning, Essentially, they are, rather, expressions of political philosophy, wrapped in the legalese of constitutional interpretation. In such a context, a President in office seeks to nominate for approval candidates who are partial to his politics and thus likely to concretize his governance agenda for the foreseeable future. Thus a court is not assessed so much for its forensic skills but as to whether it is majority conservative or liberal. It is an issue that is fought over with as dogged a determination as the political elections themselves. Recall the legally baseless, though politically successful, insistence of the Republicans that the outgoing President Obama should not be permitted to nominate a justice to the SCOTUS.

History records though that sometimes the expectations of the nominator are dashed when the nominee turns out to be other than the conservative or liberal he or she was assumed to be. Justice David Souter disappointed the conservatives as did Justice Byron White the liberals, appointed by President Kennedy and yet a dissentient in Roe v Wade. It appears that one tends naturally to assert his independence when granted a guarantee of lifetime tenure.

This rather lengthy prologue might well serve to explain the recent decision of the SCOTUS, in which by a 5-4 majority, it upheld until full argument from both sides in October the legitimacy of what has come to be known as the Trump travel ban. While I do not claim any special expertise in US Constitutional law and I accept that there might have been a partisan political element to the decision, I am still able to assess the decision for the cogency of its legal reasoning and the respective allures of the competing arguments.

The travel ban involved a proclamation by the President of a restriction on the entry of foreigners from the predominantly Muslim states of Libya, Somalia, Syria and Yemen.

The arguments of the claimants/respondents in this matter, the state of Hawaii, three individuals and the Muslim Association of Hawaii, challenged the legality of the Proclamation, principally on the ground that it violated the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward the Islam religion.

In response, the Government argued that the matter was not justiciable or subject to judicial review because aliens have no “claim of right” to enter the United States, and, because exclusion of aliens is “a fundamental act of sovereignty” by the political branches, review of an exclusion decision “is not within the province of any court, unless expressly authorized by law.”

Chief Justice Roberts in his written majority judgment was prepared to assume without deciding that the ban was reviewable, notwithstanding consular non-reviewability or any other statutory non-reviewability issue and proceeded on that basis.

As to the substantive arguments that the Proclamation was not a valid exercise of the President’s power since the relevant provision of the law conferred only a residual power to temporarily halt the entry of a discrete group of aliens engaged in harmful conduct and that it was in further violation because it discriminated on the basis of nationality in the issuance of immigrant visas, he was of the opinion that the President possessed the power to restrict the entry of foreigners to the United States based on national security concerns. The Chief Justice held that the text of the relevant provision granted the President a broad discretion to suspend the entry of aliens into the United States and found that The President had lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.

He quoted the relevant provision-

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

And he reasoned as follows, “By its terms, it exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that [it] vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated.”

This reasoning comes pretty close to arguing that the discretion of the President in this regard is absolute,  although it seems that he may not discriminate on grounds of religion. Indeed, this limitation was the basis of Justice Sotomayor’s dissent. She referred to the President’s anti-Muslim sentiments as expressed in various communications and dismissed the majority’s opinion that the ban was a matter of national security. According to her judgment,

“The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security con cerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of dis crimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.

Cataloguing a number of circumstances where the President’s communications had exhibited animus towards Muslims, she concluded-

“…the issue before us is not whether to denounce” these offensive statements. Ante, at 29. Rather, the dispositive and narrow question here is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country… The answer is unquestionably yes…”

Ironically, in the same judgment the majority overruled its earlier  decision in which it had upheld the forcible relocation of US citizens to concentration camps, based solely and explicitly on race. However, CJ Roberts considered it “wholly inapt to liken that morally repugnant order to a facially neutral (sic) policy denying certain foreign nationals the privilege of admission…”

There exists in law the concept of indirect discrimination. According to the Australian Human rights Commission,indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute,…for example: It could be indirect disability discrimination if the only way to enter a public building is by a set of stairs because people with disabilities who use wheelchairs would be unable to enter the building.

Indirect discrimination is unlawful if the discrimination is based on certain attributes protected by law, such as a person’s race, sex, pregnancy, marital or relationship status, breastfeeding, age, disability, sexual orientation, gender identity or intersex status. Some limited exceptions and exemptions apply.

To my mind, while the proclamation did not fit neatly into this category, as it was not the same for everyone, it nevertheless constituted a kind of reverse indirect discrimination, if you will,  whereby on the ostensible basis of national security, an exclusion had an unfair effect on people who shared a particular attribute-the Islamic faith.

316 comments

  • I DONT AGREE WITH YOU PIECE, BUT WE SHALL SEE
    I DO NOT BELIEVE THAT “JOSIAH’S TIME” WILL END SO SOON
    BECAUSE I THINK THAT GOD IS GIVING THE US TIME TO REPENT FROM THEIR SINS WHICH ARE MANY

    JUST AS THE REIGN OF KING JOSIAH OF JUDAH ALLOWED JUDAH SOME TIME TO ESCAPE THE IMPENDING JUDGEMENT PREDICTED BY ISAIAH AND JEREMIAH, I BELIEVE THAT TRUMP WAS SET UP IN LIKE MANNER.

    I AM NOT SAYING THAT HE IS GODLY AS KING JOSIAH WAS…….I AM SAYING THAT HE IS A SERVING IN STOP GAP FASHION

    Like

  • GP WAS NOT GIVEN a Barbados scholarship SIR
    HE EARNED IT

    Like

  • PIECE

    I GET A LOT OF GOOD STUFF IN MY IN BOX ON MEDICINE BIBLE POLITICS MAINLY

    I WONT POST ON MEDICINE BECAUSE I DONE SHARING ABOUT THAT HERE FOR REASONS GIVEN PREVIOUSLY. IT IS THE BLOGS LOSS.

    I HAVE SHARED SOME OF THE POLITICS FOR SPORT, AND TO MOCK THOSE WHO THINK THEY NEED TO CALL TRUMP NAMES, AND TO SHOW THE PREVAILING HYPOCRISY THAT ABOUNDS HERE, THERE AND EVERWHERE

    MY INTEREST REALLY IS ON HOW CONTEMPORARY EVENTS FIT INTO THE NARRATIVE THAT POINTS TO THE ESCHATON, BECAUSE AS YOU KNOW I AM A MYOPIC FAILURE WHO IS FRUSTRATED

    AN OLD MAN THANKFUL THAT MY JUDGE WILL NOT BE ANY OF THE FOLK ON BU

    Like

  • @Georgie Porgie July 17, 2018 6:47 PM “In February, the U.S. Department of Health and Human Services introduced a new grant application that prioritizes sexual risk avoidance strategies, including abstinence.”

    Do you think that the abstinence thingy will work out?

    I’ve heard that young people are as randy as, as young people, that they hate abstinence, that they mostly refuse to abstain, and that many countries and religions have overcome this by MAKING THEM MARRY EARLY, so that when they start behaving like young people, that is being randy, at least they are doing the randiness in their own matrimonial homes and not in the homes of their parents.

    But abstinence by and for young people.

    A no go.

    Like

  • It wasn’t a Barbados scholarship. It was only an exhibition.

    Like

  • de pedantic Dribbler

    Ooops, totally misplaced this.

    @Are-We, we disagree. The callous, spiteful Doc Rightwing Templar is no more a POS than any of us are.

    His displays here shines a light on any and all of us…he simply rose to higher heights than most here and with that persona sinks as equally to lower lows…a lot of us get testy just not as continuously mean and unnecessarily hateful.

    As the other blogger noted this man totally makes the concept of Christiany a mockery…Alas!

    @Dr Rightwing Echoer, reducing taxes and growing an economy is simple economic theory (supply side) the longterm downside with a grossly expanded debt in the economy is also simple economics.

    Like

  • de pedantic Dribbler

    @Simple, steeupse that’s nonsensical @ 8:13.

    The difference between a Bdos scholarship and exhibition is significant for the awardee surely…but between those two awards and all others who sat the exams and also had sterling results there is a vast perceived chasm… to simply say you won a national scholarship will always have the a WOW factor.

    Like

  • dpd
    i see you now wake up
    can you tell us what christianity is about?
    are you aware that THE LORD JESUS CHRIST AND PETER AND PAUL AND JOHN WERE GREAT DEBATERS, AND NOT WIMPS

    can you tell us HOW ONE BECOMES A CHRISTIAN OR WHATR CHRISTIANS DO ACCORDING TO WHAT THE BIBLE TEACHES RATHER THAN WHAT BIBLE ILLITERATES ON BU THINK?

    callous? spiteful ? Rightwing Templar?
    NO MAN I JUST FEEL THAT IF YOU CAN CALL TRUMP NAMES I CAN CALL THE TOKEN NIGGER NAMES TOO THAT IS ALL LOL AND I CAN KEEP IT LONGER WHILE WATCHING CRICKET OR TV OR WHATEVER

    Rightwing Echoer,? I DONT CALL YOU A LEFT WING ECHOER I DEBATE THE BULL SHIT THE LEFT IS DOING

    reducing taxes and growing an economy is simple economic theory (supply side) THAT THE INFIDEL TOKEN NIGGER WAS UNABLE TO ACCOMPLISH ah lie?

    the longterm downside with a grossly expanded debt in the economy is also simple economics THAT THE INFIDEL TOKEN NIGGER WAS UNABLE TO handle. is this what you are talking bout dpd

    Like

  • dpd
    re a lot of us get testy just not as continuously mean and unnecessarily hateful.
    NAH GP IS NOT TESTY…….HE IS TESTING WUNNA ABILITY TO ARGUE SIMPLY

    NEITHER MEAN OR HATEFUL……JUST FACTUAL
    ARE YOU SAYING THAT THE TOKEN NIGGER WAS NOT A FAILURE WITHOUT A LEGACY?
    IS THIS NOT A FACT?
    IS IT NOT A FACT THAT HIS PLOTTING IS COMING TO LIGHT?

    YOU MEAN THAT A RETIRED MYOPIC FRUSTRATED FAILURE AND POS IS NOT ALLOWED TO MOCK AT THE BU ELITE?

    YA MEAN I NOT ENTITLED TO CHALLENGE TOO? LOL

    Like

  • DPD

    TELL ME WUH KIND OF ECONOMICS THIS IS
    I KNOW YOU READ LIPSEY AND SAMUELSON AND TING

    Trump Latest Job’s Report is Big News
    07/06/2018 CNS News Susan Jones
    “Our economic policy can be summed up in three very simple but beautiful but beautiful words,” President Donald Trump told a rally in Montana Thursday evening: “Jobs, jobs, jobs,” he said.

    On Friday, the Labor Department’s Bureau of Labor Statistics said the economy added 213,000 jobs in June, a strong number; the number of employed Americans, 155,576,000, set its tenth record of the Trump presidency; but the number of unemployed Americans (which includes people who are actively looking for jobs) increased by almost half-a-million. The unemployment rate increased two tenths of a point to 4.0 percent.

    In June, the nation’s civilian noninstitutionalized population, consisting of all people age 16 or older who were not in the military or an institution, reached 257,642,000. Of those, 162,140,000 participated in the labor force by either holding a job or actively seeking one.

    The 162,140,000 who participated in the labor force equaled 62.9 percent of the 257,642,000 civilian noninstitutionalized population, a slight increase from last month’s 62.7 percent.

    Like

  • A little American politics for you GP:

    “Republican Senate Majority Leader Mitch McConnell told reporters in the U.S. Capitol that there was “indisputable evidence Russia tried to manipulate the election,” and directly contradicted Mr. Trump’s assertion that the European Union is a “foe” of the United States. “We believe the European Union countries are our friends, the Russians are not,” Mr. McConnell said.

    Fox News, the right-wing cable channel from which the President and his base get much of their information, aired criticism of Mr. Trump’s comments, with anchor Neil Cavuto accusing the President of allowing Mr. Putin to “get away with it” and labelling Mr. Trump’s performance “disgusting.” Fox reporter John Roberts said Mr. Trump had thrown his country “under the bus.”

    Even Newt Gingrich, the former House of Representative Speaker who serves as a loyal defender of Mr. Trump on cable news, said on Twitter that the President had made “the most serious mistake of his presidency” in Helsinki and called on him to immediately correct it.”
    Author: Adrian Morrow
    https://www.theglobeandmail.com/world/us-politics/article-us-republican-leaders-enraged-after-trumps-performance-at/

    Like

  • SS
    I HAVE SEEN AND HEARD ALL OF THE ABOVE REPORTS
    I ALSO SAW WHEN HE TRIED TO DO AS HIS FRIEND NEWT ADVISED

    Like

  • de pedantic Dribbler

    @Dr MockingForFun, Lipsey or Samuelson have nothing to do here…this is simple, data analysis…so of course kudos to the current administration for the excellent economic data.

    The problem is not in recognizing a great economy rather its about your remark about debating facts or as you said ” I DEBATE THE BULL SHIT THE LEFT IS DOING”. No sir, you do NOT. You simply echo rightwing orthodoxy and mimic talking points. You only dissect and properly present details on medicine and religion but on politics/economy and related you mock and BS…just like Trump.

    How can you cite the great economic numbers of a 4% unemplyment when your same champion poo-pooed and dismissed the same low unemployment figures as unreal and PHONY under Obama. Steeupse. BSing!

    Kudos for the great job numbers means that in the comparative period under Obama vrs Trump (first 18 months or therabouts as mdmry serves) Pres Obama registered MORE jobs than this ballyhooed period under Trump! It means great then and great now…it can’t mean PHONY then and awesome now.

    So dude give me a freaking break…if you want to debate FACTS then let’s get to it..and stop the BS.

    Let’s accept the the tax cuts will surely spur more growth but lets ALSO accept that under the past administration the supposed slow growth still saw 45 or so consecutive weeks of job increases…that over the years there was a tremendous growth in oil exploration (shale) and the economy wenrt from busted bailouts to AIG and GM and others to complete repayment to the US Treasury after stocks regained their lofty status.

    The FACTS are readily available for review!

    Trump talks as if he invented tax cuts, defunding PlannedParenthood, or reducing regulatory controls…get real. His egomanical style surely makes anything he does the biggest and best ever so again kudos that he controls the megaphone…

    … But things were on the up and up when he took over and despite his trade wars he has done nothing to hinder that growth YET…rather he has infused more money to the economy thus accelerating more growth.

    But to suggest that his policies are some superior philosophy that has gotten us to come magic place two years on from a surging economy (that hit a 10% unemployment at one point under Obama at the beginning) is pure BS….you certainly don’t want to discuss FACTS.

    Incidentally you coukd never justly call me a leftwing echoer because I DO NOT parrot left wing diatribes…you on thd other hand cant keep your fingers outta that sticky right wing honey.🤣

    Enjoy the mess and the booming economy…

    Like

  • @ Simple Simon

    Oh dear oh dear…. this is a googalee

    You like you was up in de QEH just waiting till you shift end to drop dis bomb here pun my friend and fellow myope Dr. GP.

    And yes Enuff of Lorenzo duo I claim the goodly doctor as my brother because he believes in my Lord and he is a fellow myope.

    And before all uh wunna talks bout his language, AND ABOUT DE OLE MAN LANGUAGE TOO, heheheheheh, de ole man would have many of you know that Simon Peter was a fisherman AND WUNNA DOAN WANT TO KNOW THE LANGUAGE THAT FISHERMEN USED and still use

    Yet “upon this rock will i build My Church”

    Like

  • PIECE
    SIMON DONT BOWL GOOGLIES SHE DOES GIVE OLD MENS GOADIES LOL

    SHE HAS BEEN TRYING TO SQUEEZE MY BALLS EVA SINCE SHE COME PUN BU
    I FRIGHTEN ENOUGH FOR SHE
    MURDAH

    I NEVER REALLY CUSS NO BODY PUN BU
    I ONLY EVAH CUSS ONCE WHEN I WAS 29 YEARS OLD
    I CUSS MY MOTHER IN LAW

    Like

  • DPD

    You only dissect and properly present details on medicine and BIBLE……NOT religion

    but on politics/economy and related you mock and BS…just like Trump. LOL

    Like

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