UPDATED: May 16, 2017: Mr. Hinderaker has this morning reiterated (in reaction to the Ninth Circuit arguments of yesterday, in which Mr. Wall was also soundly routed) his plainly-errant view that “time, place and manner(s)” don’t matter in First Amendment cases.
He also claims that the Supremes will agree with him — that Mr. Trump is actually some goofy version of a wanna-be Putin. [See the elaboration on that notion, below.] But whatever. They won’t. You may now stop reading, unless you are morbidly curious about how dishonest the rhetoric needs to be — in order to save Mr. Trump’s order.
Ready to read on? Very well. I should also note that in the Ninth Circuit, yesterday, the panel paid quite exacting attention (and properly so!) to the notion that Congress knows how to repeal a law — and plainly did not do so, at any time, after the 1965 amendments to the NIA — signed in the shadow of the Statue of Liberty — by then President Johnson. Those amendments are still enforceable law, as enacted by Congress.
In a fit of Mad-Hatterdom, Mr. Wall yesterday told the Ninth Circuit that the courts (even the US District courts!) have the power to read that long-standing prohibition on “religious or nationality discrimination” right out of the law, on the court’s own volition. He said there was no duty to harmonize the law, as a whole. Preposterous.
Mr. Wall also implied that the President on his own, may overturn existing federal law, passed by Congress — by simple Executive Order. [Of course, he doesn’t really believe any of that, but that is the only way Mr. Trump may save his order, here.] We all know there is a line of cases going back over a century that directly refutes this appallingly stupid argument — it does not pass any “straight face” test. Mr. Trump loses, at least 5-4, and maybe 6-3 at the Supremes. That’s how this one ends. [End, updated portion.]
Let us start at the beginning: the question the able jurist actually asked was whether — on completely different facts — a facially neutral order like Muslim Ban 2.0 could ever be found constitutional. The jurist asked what if another candidate/President (one who had said none of the things 45 said) adopted this order.
And the answer given was — if that mythical President complied with the APA — and the NIA, as amended — when he/she implemented it — it could be constitutional, depending on other facts. [To be clear, Mr. Trump did not so comply. And Mr. Trump created an orgy of evidence that his intent was — and is — to violate the Supremes’ holding in Lemon.]
Tonight, John Hinderaker knowingly distorts this dialogue — to suggest something preposterous:
In John’s flat-Earth world, if it is perfectly lawful to yell “Fire!” on a deserted street corner, at 7 AM on a Saturday morning (and it is!), but it is unlawful to yell “Fire!” — inside the sold-out Ford Theater, on Friday night, while “Hamilton” is playing (and it is!)… then the law must be… seeking an “absurd result“. Uh-huh.
No, John — as you well-know — time, place and manner matters, in First Amendment free speech cases — so to, in religious First Amendment cases. Like this one.
Facts matter. Shooting someone in self defense is not murder, but shooting them in the back without provocation… is murder.
Sheesh. Here endeth the entirely-remedial logic lesson for Mr. Hinderaker’s more pointy headed acolytes. Of course, he well knows he’s making a specious analogy. But he doesn’t care.
Onward. and Namaste.