Back in those days when America’s immigration policy was first being written by robed Polynesians, I remarked in these pages on the prospects of Trump taking the matter to the Supreme Court. I estimated those prospects as being very poor based on no laws, precedent, or legal doctrine whatsoever. Instead my forecast for this apolitical, strictly judicial review was premised solely on the number of the court’s semi-conservatives and semi-bolsheviks.
See, that’s the magic of jurisprudence. You get nine lawyers in a room, and whichever side has five predetermined votes is what the Constitution says. So if Hillary had won, the Constitution would mandate a Honduran in every home. But since Trump won, it just requires Sudanese goatherds to make up a story about their aunt in Topeka. This may leave you wondering what was the purpose in getting 128 million people in a room last November if it’s all a matter of political headcount anyway. The answer is: it’s just easier counting to five.
At any rate, I predicted Trump would lose ignominiously since the left had four votes as solid as John McCain’s gallstones. In contrast, America had only Thomas and Alito. The flouncing, coquettish Kennedy and Roberts being reliable for little more than singing the Sound of Music while mutual luffa scrubbing in the shower.
In large measure, that’s what occurred. The vote was 6-3 for a pretense begging opinion that said the travel ban is valid…unless the migrant has a good imagination.
The executive order may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.
What part of the constitution was this pulled from? And how are these credible claims of entity consortium to be adjudicated? Obviously “credible claims” are going to be as thick on middle eastern migrants as pubic lice. So will any claim do? So many aunts in Topeka.
Clarence Thomas, in his customary role of doing the judicial work white justices will not, offered the obvious rebuttal.
The “compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country”…and will invite “a flood of litigation”. And, Justice Thomas added, the very judges that blocked Mr Trump’s travel ban would probably be the ones considering whether a potential traveler has a “bona fide” reason for being excused from it.
Returning to my prediction, Gorsuch joined Alito and Thomas in voting for the President’s authority to determine access to America, while the communist bloc predictably claimed that power resides exclusively with Polynesians. Thus it was left to Roberts and Kennedy to cobble together a compromise that works for everyone except Americans.
Though a compromise is still quite preferable to absolute defeat. And until Kennedy retires to write coloring books, that may be all the Constitution is willing to give us.