Trump Tried to Intimidate the Judges Over His Ban, and He Failed
Presidents have thought before that they could roll those wimpy-looking nerds with their gavels and robes. It usually doesn’t work out all that well.
先程の控訴裁判所の決定の解説
The opinion is written with remarkable care. Even though it is strictly preliminary, one of the criteria the court applies at this stage is called “likelihood of success on the merits.” In other words, if the court thought the government would win on the underlying issues, it would have reinstated the travel ban.
It didn’t. And the panel didn’t seem impressed with the government’s case on the merits. The members—Judges William C. Canby, Richard Clifton, and Michelle Friedland—include two Democratic appointees and one Republican. But they were unanimous and firm. The Administration could have suffered a greater setback at this stage, but it’s hard to see how.
The panel begins with the government’s claim that the executive order is “unreviewable.The President’s statutory discretion to exclude “any class of aliens” is absolute, the government said.
The court then cited numerous cases supporting that principle—pointedly including even the notorious Japanese Internment cases of World War II and the equally disreputable Chinese Exclusion cases of the 1800s.
Next came the issue of whether the order complies with the Fifth Amendment’s Due Process Clause. The government argued that most non-citizens covered by the order have no due process rights to enter or remain in the country. The court kicked that one to the curb. Aliens in the U.S.—even undocumented ones—“continue to have potential claims regarding possible due process rights. So do temporary visa holders who might want to travel abroad.”
Then the court turned to the heart of the constitutional claim—that the order “was intended to disfavor Muslims,” thus violating the equal protection principle of the Fifth Amendment.
Countering that, of course, are the dozens of proud statements by candidate Trump and his surrogates that he was planning “a total and complete shutdown of Muslims entering the United States” and even that the current EO was a carefully disguised way of doing exactly that.
Finally, the panel told the government that it had failed to produce “any evidence” of “an urgent need for the executive order to be immediately reinstated.”
政府に勝ち目があるとみたら、入国禁止を再開するところだったが、控訴裁判所は、そうみなかった。
政府は、司法は移民の入国について審査できないと主張したが、日本人や中国人に入国制限を審査した過去の判例を持ち出して、政府の主張を否定。
在米外国人には適正手続きの権利がないとの主張も退けた。
イスラム教徒の禁止ではない、という主張に対しても、トランプ大統領の選挙期間中の発言を取り上げて否定。
入国禁止を復活する緊急の必要性がある、という証拠も不十分だ、として、政府の主張を退けた、と。
