UPDATED 05.26.2017 PM — Mr. Hinderaker has once again doubled down on a dishonest pretense — pretending that he doesn’t understand what all other serious lawyers do understand: First Amendment “time, place and manner” restrictions, are a bedrock line of cases. Supreme Court cases. And, that the argument that a “different” President would get a different result is true because this President essentially yelled “FIRE!” — in a crowded theater. A President who sits quietly — and watches the show Hamilton, will not be ejected from the theater, precisely because that other President didn’t violate First Amendment law. Facts matter John… But no, Mr. Hinderaker pretends he never read those cases. Shameful — and with this, he undermines respect for the law with his dishonest and illogical “arguments”. [End — updated portion.]
YAWN. Just as I said, months ago — and repeated under that link, supra. John’s “bullet proof” is in fact, to any capable Constitutional lawyer — so much swiss cheese.
The Fourth Circuit — 10-3 just declared Muslim Ban 2.0 a dead letter. On to the Supremes where it will fail, at least 6-3 — and maybe 9-0. Even with the much Hinderaker- vaunted Gorsuch in his robes, and listening.
[Silly me. I thought the Ninth’s three judge opinion would appear, and be published, first.] The line-up is 10-3 AGAINST Mr. Trump’s Muslim Ban 2.0. It would not surprise me to see the 3-0 opinion AGAINST it, tomorrow, out of the Ninth Circuit.
I had guessed a minimum of seven were going to lean that way — in the Fourth — and eight did, in full. The language Chief Judge Gregory (writing for the majority in the Fourth Circuit) uses is. . . towering, as the threats presented — by the 45th President himself, were. . . unprecedented, in their audacity — in at least the last three-quarters of a century:
. . . .The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles — that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. . . .
President Trump, in a speech at a rally [on March 15, 2017] in Nashville, Tennessee, described EO-2 as “a watered down version of the first order. . . .”
To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint. . . .
THACKER, Circuit Judge, concurring: I concur in the majority’s opinion but write separately for three reasons: (1) I would not consider remarks made by candidate Trump before he took his presidential oath of office; (2) I would nonetheless find that Appellees have demonstrated a likelihood of success on the merits of their argument that Section 2(c) of the Second Executive Order (“EO-2”) violates the Establishment Clause, based solely on remarks made or sentiments expressed after January 20, 2017; and (3) I would conclude Appellees have demonstrated a likelihood of success on the merits of their argument that Section 2(c), as it applies to immigrant visas, violates 8 U.S.C. § 1152(a)(1)(A) of the Immigration and Nationality Act (“INA”) [Ed. Note: that is the LBJ-era amendment I’ve written about at length here]. . . .
On to the Supremes. I read an advance sheet of this at [redacted] PM CDT today — and wasn’t taking or making any work calls, since I was on one of the briefs (on the prevailing side, of course). Now it will be a GREAT Memorial Day Weekend, for those of us who still believe in ordered liberty, under the law. . . . Woot! Yep — onward, to the Supremes — where (“Condor predicts”) 45 loses 6-3. As it is, he is 0-for-6, in the courts, if memory serves thus far.
नमस्ते
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