Browsing the blog archivesfor the day Monday, June 26th, 2017.


SCOTUS Drops Two Mini-Bombs

Trump Maladministration

I’m calling them mini-bombs, because I suspect they will turn out to be less significant than they seem right now. First, SCOTUS agreed to review Trump’s “travel ban,” and in so doing they allowed a watered-down version of the ban to go into effect. This is from SCOTUSblog:

The lower courts had considered the hardships that the ban would create for the named plaintiffs in the case: two men with family members who want to come to the United States from the affected countries; and the state of Hawaii, whose state university had admitted students from those countries. But, the court explained today, the lower courts’ orders barring enforcement of the ban “reach much further than that,” because they also apply to people living overseas “who have no connection to the United States at all.” When those people are unable to come to the United States, the court reasoned, their constitutional rights are not violated – because they have no right to come to the United States – and their exclusion from the country does not harm anyone in the United States.

The justices therefore upheld the lower courts’ orders blocking enforcement of the ban with regard to the named plaintiffs and others like them – people who “have a credible claim” of a genuine relationship with someone or an institution in the United States. When that relationship is with an individual, the court made clear, it must be a close family member. And when the relationship is with an institution, the relationship must also be a genuine one, rather than one created just to get around the travel ban.

So, if someone has close family already here, or a job, or some kind of documented reason to be here like an invitation to lecture someplace, he or she cannot be blocked from entering the country. People from the Muslim-majority countries named in the original ban who have no prior relationship to anything or anybody in the U.S. will be unable to get visas, however, at least for the time being. Here’s the actual decision.

Justices Thomas, Alito and Gorsuch dissented, stating that they would have just reinstated the ban, period, without regard to a prior relationship in the U.S.

Whether this action today has any bearing on how the Court eventually will rule, nobody can say.

The other mini-bomb is Trinity Lutheran Church v. Comer, in which the Court ruled that tax funds to fix up a playground could not be denied just because the playground is on church property. I’m going to have to look at this more carefully when I have time, but all along I haven’t been able to see why this case represents any departure from established case law. There is long precedent for tax money going to church organizations who are using the money in a not-religious way.

The three-part test established in Lemon v. Kurtzman, 403 U.S. 602 (1970), as to whether something violates the establishment clause, basically calls for the law or policy to have a secular purpose, that it neither promotes nor inhibits religion, and that it does not foster “excessive government entanglement with religion.” Seems to me that a state grant to pay for improvements to a playground used by children in a neighborhood kind of fills that bill. I have yet to see what the big deal is about this case.

However, Justice Sotomayor, joined by Justice Ginsburg, wrote a long dissent that I haven’t had time to read. So I think I may be missing something. I’ll get back to you later when I figure out what it is. Here’s the decision.

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