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The justices vote 5-4 to uphold Donald Trump’s travel ban

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RobS66

Why just post the headline and the name of the author? Any of us can fill in her ideological viewpoint and sketch out the basic narrative she writes. No need to waste your time reading it.

k. r. gardner

Personally I think Justice Kennedy resigned in exasperation of Justice Sotomayor's ridiculous Korematsu argument. She perhaps confused the current southwestern border detentions with Somalian et al travel bans.

LexHumana

It is important to understand that a constitutional challenge can take two forms: the first is a claim that the act is unconstitutional on its face, and the second is that it is unconstitutional in its application. In the second instance, the action is otherwise constitutional, but is being misapplied in an unconstitutional manner.
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I found the dissent by Breyer and Kagan most interesting. They basically conceded (buried deep in their opinion) that the Executive Order was arguably not unconstitutional on its face, but they were concerned that the Order was being implemented in an unconstitutional manner. They based their belief on some statistics about how often waivers were being granted. However, I would question whether this "as applied" argument is valid given the claim for standing of the plaintiffs.
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The plaintiffs in this case were not the aliens being denied visas. Instead, they were the American citizens and organizations that were claiming that THEIR first amendment rights were being violated by the Executive Order, by denying them access to speakers. Thus, the only applicable constitutional question regarding waivers is whether someone was denied a waiver AND THEREBY violated an American's first amendment rights.
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If we take the example of a Yemeni child with medical needs being denied a waiver, I fail to see how this implicates any constitutional issues -- the Yemeni child has no constitutional right to enter the U.S., and there is no American who can legitimately claim that their first amendment speech right has been violated by not granting the Yemeni child a medical waiver. She is not coming in to be a speaker or share ideas, she is coming to have medical treatment.
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As a consequence, I can't see how the "as applied" argument works here. The U.S. may not be granting many waivers, but that is not an actionable constitutional issue in and of itself. It only becomes a constitutional issue if American's can claim that (1) they were denied the opportunity to hear a speaker who (2) would have otherwise been eligible for a waiver yet (3) was arbitrarily denied that waiver. A sick Yemeni child is therefore a rather poor example to be using.
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The real import of Breyer and Kagan's dissent is that they implicitly agreed with the majority that the Executive Order is arguably constitutional on its face.

ashbird in reply to LexHumana

Its' great you took the time to delve into these important substantive points. Your posts informs and educates. Not always easy to find in a milieu such as TE.
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Re the point on waiver, the concern is whether the waiver process is as "robust" as the government has claimed. This is of particular moment now that the Court has spoken on a long simmering case where there were many angry people on both sides.
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There have been reports a Yemeni woman with rheumatic heart disease was told in December that she’d be allowed into the country to join her U.S. citizen husband but denied a waiver once the 3rd travel ban went into effect; a widowed 80-year-old Iranian man who lost son to brain cancer was denied a waiver to come live with his U.S. citizen daughter; a 10-year-old girl, daughter of an American citizen, who has cerebral palsy was denied a waiver (Justice Ruth Bader Ginsburg asked the government about her individual case during oral arguments in Trump v. Hawaii); reportedly the girl has now been allowed into the United States.
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Things in the real world upon which the law has immediate and actual effect tend to move and work not in tandem with the realm of abstract legal thinking. I believe the ruling in the case is legally sound. Now in application, I hope many of the human dramas such as recorded above will play out semi-decently in human terms.

CA-Oxonian

When you have a Republican dominated Congress and a Republican majority in the Supreme Court it's hardly unexpected that they will give craven backing to a (supposedly) Republican president regardless of how greatly that president violates the norms of civilized societies. So much for the "checks and balances" of the Constitution.

When historians write of this period, the Republican Party and its supporters will clearly be seen as identical to those German politicians, judges, and others who supported Hitler. At the time, remember, no one thought that the shouty little man was leading the world over the edge of the abyss. They all thought he was "making Germany great again."

This is how societies end: not from external assault but by rotting from the inside.

RobS66 in reply to CA-Oxonian

Just a warning to potential readers about a possible infection by another reductio ad Hitlerum fallacy. However, the disease is not fatal. Take two shots of schnapps and go to bed, and you have forgotten it by morning

guest-aammewej

A journalist at "The Economist" wrote, "Justice Sotomayor embarked on a full-throated, 28-page condemnation of the majority's stance. ... 'Our constitution demands, and our country deserves', she wrote, 'a judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments'."
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One of the "most sacred legal commitments" by the federal government is to ensure equal opportunity for all citizens without regard to ethnic or racial background.
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Yet, Justice Sonia Sotomayor vociferously supports using affirmative action (AA) to discriminate against Americans of European or Asian ancestry. Being Hispanic, she has received preferential treatment via AA. Without it, she would not have attained admission to Yale Law School. An Asian-American would have received her admission slot, enrolled at Yale Law School, and eventually become a justice on the Supreme Court.
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Furthermore, Sotomayor refuses to admit that some ethnic or racial groups lack either the intellect or the will to assimilate into Western society. The presence of such groups ruins the quality of life in the West.
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Here are 2 examples.
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According to a report by the "Santa Monica Observer", a group of approximately 50 African and Hispanic youths on April 22, 2017 seized a light-rail train in Oakland (United States), assaulted the passengers, and stole their money and other possessions.
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According to a report by "The Washington Post", a group of 2 Moroccans and 1 Pakistani on June 3, 2017 drove their van into a group of pedestrians in London (Great Britain). The thugs left the van and used knives to stab customers in nearby bars and restaurants. An eyewitness stated, "a woman probably in her early 20s staggered into the pub and she was bleeding heavily from the neck and from her mouth. It appeared to myself and my friends that her throat had been cut."
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We should immediately close the borders of all Western countries and restrict entry to only immigrants who will assimilate into Western society.
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There is more information about this issue.

guest-aammewej

A journalist at "The Economist" wrote, "Justice Sotomayor embarked on a full-throated, 28-page condemnation of the majority's stance. ... 'Our constitution demands, and our country deserves', she wrote, 'a judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments'."
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One of the "most sacred legal commitments" by the federal government is to ensure equal opportunity for all citizens without regard to ethnic or racial background.
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Yet, Justice Sonia Sotomayor vociferously supports using affirmative action (AA) to discriminate against Americans of European or Asian ancestry. Being Hispanic, she has received preferential treatment via AA. Without it, she would not have attained admission to Yale Law School. An Asian-American would have received her admission slot, enrolled at Yale Law School, and eventually become a justice on the Supreme Court.
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Sotomayor refuses to admit that some ethnic or racial groups lack either the intellect or the will to assimilate into Western society. The presence of such groups ruins the quality of life in the West.
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Here are 2 examples.
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According to a report by the "Santa Monica Observer", a group of approximately 50 African and Hispanic youths on April 22 seized a light-rail train in Oakland (United States), assaulted the passengers, and stole their money and other possessions.
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According to a report by "The Washington Post", a group of 2 Moroccans and 1 Pakistani on June 3 drove their van into a group of pedestrians in London (Great Britain). The thugs left the van and used knives to stab customers in nearby bars and restaurants. An eyewitness stated, "a woman probably in her early 20s staggered into the pub and she was bleeding heavily from the neck and from her mouth. It appeared to myself and my friends that her throat had been cut."
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We should immediately close the borders of all Western countries and restrict entry to only immigrants who will assimilate into Western society.
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There is more information about this issue.

Marty J

You write that this fulfills Trump's promise to ban all Muslims. It does no such thing.

It only affects travelers, regardless of religion, from a handful of countries that do not have effective means to provide information about travelers. Those countries house about 10% of the world's Muslim population.

And Sotomayor's reference to Korematsu is disingeuous to the point of dishonesty. Korematsu involved the forcible relocation (and in many cases expropriation) of American citizens and legal residents, it had nothing to do with immigration or visas to enter the country.

I am a subscriber, and I really am wondering why I bother--your coverage of the US has totally gone to hell in the last couple of years, and if The Economist can't get the US even remotely right why should I pay attention to what you say about Africa or Latin America or Asia? Your US coverage reads like someone sits in a closed room somewhere in the world and receives the headlines from a small handful of sources, all of like biases, and on that basis pretends to have something to say.

ashbird

Two critically important points were not mentioned in S.M's blog.
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(1) Despite Trump's administration's claim that the Court's judicial reach should not extend to Executive Order (recall the President's loony rant: "so-called judges", "a bunch of morons", "Executive Branch has 'plenary power over everything'") , the Court undertook to review plaintiff's case. This is an important affirmation of the 3 co-equal branches of government under the Constitution.
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(2) The ruling does not win fans in those opposed to it. But the ruling marks a historic moment in the continuing evolution of jurisprudence under the law. It explicitly overrules Korematsu v. United States, a case wrongly decided in 1944, in language that is plain and emphatic.
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Personally, I think Chief Justice Roberts crafted a convincing opinion. Two points stated in his opinion convince me: (1) He accords #Ban #3 - as written - Rational Basis as standard of review, not Strict Scrutiny which the case would have deserved had the analogy to Korematsu succeeded, and Roberts explained why it didn't; (2) the proof of "animus" - the central argument of the lower court - was seen as insufficient*. [* This is an unfortunate. I personally think "animus" drips in the language of Ban#1 and Ban#2. By Ban#3, the government had cleaned it up. What the Court reviewed was #3, not #2 or #1]

jouris in reply to ashbird

It is difficult to follow the tortured reasoning that says that ban #3, the clear descendant of ban#1 and ban #2, is not just as founded in religious animus. The lipstick on the pig that is the inclusion of a couple of non-Muslim countries notwithstanding.
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And if Mr Chief Justice Roberts wants to know how this ruling will be viewed, he has only to read his own words here regarding Korematsu.

ashbird in reply to jouris

Yes, jouris. There is no question ban #3 is descendant of #2 and #2 is descendant of #1. You know that. I know that. I would say all people who are not blind and hard of hearing or reading know that.
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The problem is in making a ruling for Trump v Hawaii, the ban that was under adjudication was ban #3.
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Government's lawyers (clever bunch this time around) have "cleansed" #3 of evidence of "animus". That is the problem. On the face of #3, the animus argument is weak because after the "cleansing", the evidence was hard to prove if not impossible. That was the problem. The fact that Sotomayer brought in Korematsu didn't help. The two cases are distinguishable. The Japanese placed in internment in 1942-46 were US citizens (my Wiki search told me 62%) or otherwise already residing in US soil; the citizens had the full rights and privileges under the Constitution; such rights and privileges could not be curtailed and stripped without due process. In Trump v. Hawaii, the folks banned are ones seeking entry to the country as non-citizens; no citizenship rights and privileges have vested or even exist. I do not like the Court's ruling any better than you do. But this is how the law works. A big irony of law is it is a mistake to assume it is inherently humane.

jouris in reply to ashbird

The government's lawyers claim #3 was "cleansed" of animus. But given the history of the ban, and the repeated statements of the President, it is impossible to give that credibility. Especially when the Court, in this very same term, used a far less direct comment from a Colorado official to justify overturning one of his actions. I don't expect the law to necessarily be humane. But I do expect it to be applied consistently.
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It isn't that the circumstances of Korematsu are the same. It's that this decision is equally wrong on its face.

ashbird in reply to jouris

jouris, in response to what you said, I can only think of this: Perhaps in another half-century, democracy in America shall have matured to a level where Trump v. Hawaii will be seen as Korematsu II. At the moment, it isn't. And it isn't for the following reason -
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Trump was put into the White House by America's own voters. No foreign country has come in to effect a "regime change", so to speak, all Russia's interference or alleged/purported interference in the election notwithstanding. Many (not all, repeat, not all) of Trump's most ardent supporters are plain white supremacists, and they are not ashamed to self-identify as such. These are the creme de la creme of losers in a brave new century where their skills to make a living no longer apply and their world view ill-equips them for survival in a changed world [Personally, I don't even think Trump himself is a genuine white supremacist, as some say he is - the man just goes where the money is, he is a pragmatist behind all his shenanigans]; the hatred these supporters evince against anyone not of the "correct" color truly rivals that in the days of Emmet Till. You see them and read about them plain and clear on TE's community forums. They are sobering to watch.
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The initiative for ban #1 - was seeded in this hatred. How #1 morphed to #2 and from #2 to #3 was a judicial development. As you must know, and should know better than I, what is judicial in America is inseparable from what is political.
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Re the case Trump v. Hawii, lest all hope is lost, do note the last 3 paragraphs of Roberts' opinion, writing for a 5-4 majority. They say this:
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"Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.
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"Because plaintiffs have not shown that they are likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunction as an abuse of discretion. .... The case now returns to the lower courts for such further proceedings as may be appropriate. Our disposition of the case makes it unnecessary to consider the propriety of the nationwide scope of the injunction issued by the District Court.
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"The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."
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In other words, the door for redress of wrong (in particular, application for WAIVERS) is not shut.
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VhrmAtKHXG

The job of the judiciary is to interpret whether a law or action is consistent with the Constitution. Justice Sotomayor's heavily political dissent inserts her personal opinions and preferences into her vote. The majority did the right thing.

guest-onnawsn

To call these travel restrictions a Trump ban or a Muslim ban is a real misnomer. Statistical empirical evidence may have suggested that there is a grater risk to public safety from persons travelling from certain areas of the globe triggering a need for some kind of caution. Countries,Towns,or even personnel homes sometime do have to have a criteria to decide who should be allowed to enter. Also subsequent future changes to current practice may be governed by changes to future empirical evidence.

guest-amjnelsl

I disagree with the ruling. The U.S. needs migrants for its economy not to falter. Nevertheless I'm against unconditional acceptance of refugees, the migration has to be strictly legal and allowed only when the individual is deemed fitting with the local culture and occupational requirements. So a merit-based system, though not to be confused with President Trump's use of this phrase which is just a weakly veiled way of saying "less immigrants". And that is against the economical interests of the U.S., which are paramount and overshadow most other matters, in my opinion as a citizen of the EU.
On a different note, what's wrong with Justice Sotomayor's English? The quotes look mired with corrections. Or is that just for aligning with the structural necessities of this blog?

RealJournalism

The issue here is that Trump's muslim ban has nothing to do with the US security. The terrorists attacks on the US soil have not been committed by individuals from those nations.

These are countries that the US failed to properly deal with, and like many other US policies in the ME, Israel's nasty influence is obvious.

Nevertheless, the ban create resentments among many muslims who live in the US and abroad. The majority of these muslims leave their countries to live in freedom. Perhaps it is about the time for these muslims to not to take the freedom in this country for granted. Now, immigrants from these countries should be able to realize that an orange clown can take away their hopes and the future of their children. They should stand up and fight for America.

RealJournalism in reply to david365

It is interesting that Trump blames his opponents for his own failures.
Obama disagrees with Trump's ban and democrats did not support the zero tolerance policy and the atrocities done by the US agents at our southern borders.

david365 in reply to RealJournalism

Trump's first visit to a foreign country was Saudi Arabia. He could hardly be called anti-Muslim. In fact Trump's second visit was to Israel. It is not too hard to guess that Trump was working on joint (Muslim) Saudi Arabia, Egypt, UAE, and with Israel agreement to help *protect* Muslim countries and Israel from an errant Iran.

These Muslim countries along with Israel thought Obama made a huge mistake with his Iran agreement. General David Patraeus agreed with Trump that the Obama negations were wrong and that Trump is doing the correct thing to reopen them.

It was Trump that actually kept his campaign promise to move our embassy to Israel's capital, Jerusalem.

Congress should have implemented eVerify years ago. This is the fault of both previous administrations (Bush, Obama) and Congresses. During the period 2008 to 2010 Obama was able to pass the Affordable Care Act without a single Republican vote. If Obama truly cared about immigration, he could have fixed it with passing eVerify.

Trump inherited the immigration mess, it is hardly his fault than neither Bush nor Obama implemented eVerify.

david365 in reply to RealJournalism

Trump's first visit to a foreign country was Saudi Arabia. He could hardly be called anti-Muslim. In fact Trump's second visit was to Israel. It is not too hard to guess that Trump was working on joint (Muslim) Saudi Arabia, Egypt, UAE, and with Israel agreement to help *protect* Muslim countries and Israel from an errant Iran.

These Muslim countries along with Israel thought Obama made a huge mistake with his Iran agreement. General David Patraeus agreed with Trump that the Obama negations were wrong and that Trump is doing the correct thing to reopen them.

It was Trump that actually kept his campaign promise to move our embassy to Israel's capital, Jerusalem.

Congress should have implemented eVerify years ago. This is the fault of both previous administrations (Bush, Obama) and Congresses. During the period 2008 to 2010 Obama was able to pass the Affordable Care Act without a single Republican vote. If Obama truly cared about immigration, he could have fixed it with passing eVerify.

Trump inherited the immigration mess, it is hardly his fault than neither Bush nor Obama implemented eVerify.

CLH787

I'm an Independent Voter in the US who believes in strong national security, limited government and government transparency, all missing during the 8+ awful years from Jan 2009 thru Jan 2017.
I'm certain the PC Crowd of reporters and editors at The Economist will continue to deride the USA for defending our country and its borders and for Trump's taking this 100% Constitutional action. Indonesia, the country with the largest Muslim population, has a functioning government, so is not on the list. Venezuela's Maduro is a thug and drug cartel kingpin. The other countries either overtly support terrorism or have no functioning government. Because of The Economist's increased animus towards the USA since after the 2012 elections and because of its continued support of the idiotic Obamacare and the other idiotic Obama policies, I will not renew my personal or my 3 gift subscriptions which are due during July thru September 2018. All 4 of these are combined print and electronic, the most expensive. Call it a personal boycott if you will. It's what the radical left has been doing for over 20 years. It is past time for the rest of America to fight back against these fiends by using the same weapons they use.
Instead, I will reallocate those funds to two great entities, The Heritage Foundation and Judicial Watch. Both stand for zero-based budgeting, limited government, transparency and holding accountable the government personnel who fail to deliver them. Bonus --- I get a tax deduction for doing this!
Goodbye and good riddance Economist. Enjoy the left wing Kool-Aid. It's perfectly legal under our First Amendment! So are my views, which 99.99% of the US media and The Economist ignore.

guest-aalalona

Trump’s ban has nothing to do with national security or Islamic terrorism, since if it did, Saudi Arabia would be at the top of the list of banned countries, and it isn’t even on the list. Nor is the ban a “Muslim ban”, since Muslim countries such as Turkey and Indonesia (which has the world’s largest Muslim population) aren’t on it, and Venezuela, which is not a Muslim country but a Catholic one, is.

Another reason the ban has nothing to do with national security is that the biggest threat to security in the US is not Islamist extremism, but lone deranged Americans committing mass shootings at schools and Las Vegas parking lots. The ban is a sham in every regard, as is the Supreme Court’s legitimizing it on a national-security pretext.

homocidalmaniac

Not being an American, I am able to understand how preventing terrorists, from countries that support and condone terrorism, from entering their country may be good for all of humanity, not just the USA.
From personal experience, the world forced my country to accept terrorists as the sole representatives of its people and it didn't take long for the killing to start (genocide), the economy to be destroyed (theft and hyperinflation on a level not seen since Weimar Germany) and the infrastructure to be ransacked (managerial incompetence on a grand scale) despite the billions of dollars thrown at it by the USA, Europe, UK, Australia, Canada. After a few short decades the country lies in ruins and has become one of the poorest lands on earth.
So much for Rhodesia as it transitioned to Zimbabwe and now those people live in abject poverty, because ideology does not satisfy the body, when starving.
Americans must be very careful for what they wish! No doubt, Ian Smith as with Donald Trump, would see it for what it is worth?

barry carlisle

Sotomayor's comments are the delusional and irrational rantings of a cultist. The Political Correctness cult and its insane xenophilia have infected the highest offices of US governance. It has to be purged, it really is extremely dangerous and a recipe for civilizational collapse/suicide.

ProgsCon

comparing to "internment of Japanese Americans in the second world war,"
Hunh?
How can you compare the act of interring people who are already here to those that are just trying to get in? The severity of how you respond is completely different. Even a child can see that.
This comparison is symptomatic of the weak arguments that the left uses not only in immigration but health care and other major issues.
Not well thought out and not convincing enough to the other side to win them over.
The problem the left has these days is a lack of clarity of thought and logic. They need to grow up.
And come up with better arguments instead of just whining..

jouris in reply to ProgsCon

Both were based on bigotry masquerading as national security. And both were, in Chief Justice Roberts' words, "gravely wrong the day it was decided".
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If there was a real national security basis, Saudi Arabia (the home of Osama bin Laden and of most of the 911 terrorists) would be top of the list. Instead of a bunch of countries from which zero terrorists have entered the United States.

Houshu

The opposing view expressed by justice Sotomayor that equates the ban on certain foreign nationals with the internment of US citizen (of Japanese descent) during WWII is just asinine.

ashbird in reply to Houshu

Agree. Justice Sotomayor made a counter-convincing point by drawing an analogy between the two. This is what happens when a thinking algorithm starts with a wished-for conclusion and works its way backward. Sigh.

LexHumana in reply to ashbird

Korematsu involved the internment of American CITIZENS solely on the basis of race and national origin, which was violative of THEIR constitutional rights. This is the critical distinction that Sotomayor glosses over. The Executive Order is necessarily based on national origin, but it does not involve citizens -- it involves alien travelers who have no constitutional right of entry, and therefore they cannot have their constitutional rights violated on that basis.
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It is important to remember that this case was not brought by the aliens themselves (who have no standing to sue for a constitutional violation), but was instead brought by Americans claiming a violation of THEIR first amendment rights. Thus, Korematsu is not on point in this matter.

ashbird in reply to LexHumana

Sure. Thanks for spelling out the difference. I have found Sotomayor's judicial reasoning jarring in the past (can't remember which case). I can't say I admire her as one of the Court's strongest legal minds. It is very difficult to temper passion by reason - the test of a good legal mind; a handful of jurists in the Court's history could do it.

Kremilek2

I don't think that it is a ban on Islam in general. It is more a ban on immigration from countries where background checks are difficult and immigration can pose a threat for the security of America. But there should be exception for those who take actively pro-Western stances and risk thus their lives.

RareBird

Supreme Court, stolen by domestic enemies, enables disloyal benefactor of election conspiracy on the heels of his American atrocity on the southern border to create animosity toward what's left of America for generations to come by reckless racist policy to punish people for simply observing a different religion. We live in a "conquered" nation with partisan hacks and haters ganging up to set horrendous precedents. Putin ecstatic. Now is the time for all good people to come to the aid of their nation and vote out the complicit in tyranny. Thank you.

Nick- in reply to RareBird

Wow, are you serious or is this post sarcasm?
Do you have any idea how hysterical you are? Why is the President a tyrant for preventing people from coming from countries that barely have a functioning government; let alone sufficient internal security/terrorist tracking procedures?
Every country on that list is a failed state that aids and abets terrorism.

barry carlisle in reply to RareBird

Your insane 'liberal' (read Marxist) open borders dogma has so many holes in it, people drive metaphorical buses through it every second of the day, now that you can no longer control discourse. You can spew all the stupid insults you want at dissenters, your dogma is absolute sh1t. Revisit it, revise, acknowledge your shortcomings, come back again. Humility.