Re: Rethinking the 1st & 2nd Ammendments
As I read the decision the important test is the "facially legitimate and bona fide" test in Mandel. Mandel basically says that courts shouldn't look behind executive or legislative discretion with respect to immigration. However in Din Justice Kennedy stated that when done in "bad faith" courts may look behind the action to assess whether it is facially legitimate or not and in Zadydas v Davis the court found that the legislative and executive power with respect to immigration is not unlimited and is subject in certain circumstances to judicial review.
The court found that candidate Trump's statements illustrated bad faith that under Din the court could question whether it was a facially legitimate exercise of executive power. The court found that it wasn't - essentially stating that the EO wasn't an exercise in protecting American citizens but an exercise in discrimination. The court then found that the action violates the Establishment Clause.
First, indulge me a small rant:
There is nothing more inventive (or insidious) than the judicial ritual of trying to find a pretext for linking to another series of prior micro pretexts (precedents) for judicial usurpation of power and arriving at opinions barely tied by the gossamer threads of nexus. Never mind that deductive reasoning of a plainly written law is more sure-footed in a search for truth; for judges intentionally prefer that a long string of problematical causative precedents that statistics tell us has only a tiny chance of coming out "right". Hence, the birth of bad law.
Second, in regards to Din.
a) Din arose from the decision of a consular officer to meet the requirements of a statutory law, and on that basis deny entry to an alien. Kennedy wrote (in a highly fragmented opinion) that:
"Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed. See 408 U.S., at 770, 92 S.Ct. 2576."
b) So if the Trump EO (a policy issued under his statutory authority and Article 2 powers) were implemented, that same Counselor official must approve/disapprove visas based on those statutory requirements; for example, the official could only be challenged in court in his denial of a VISA if his decisions were not facially legitimate nor a (facially) bone fide (in good faith) execution of the EO.
c) The 4th circuit is warping and inflating Din for something quite different in principle; it is claiming that THOSE WHO WRITE the policy-statutory requirements for the hypothetical consular official (the President and/or, by extension , Congress) must create facially legitimate law and "in good faith" to the courts view of the Constitution?
Whatever your view of Trump's EO, it seems pretty clear that the 4th was being disingenuous in the use of DIN. "Looking behind" an officials execution of legal requirements is a different matter than asserting the right to "Look behind" the motives of those who have the authority to effectively make the law itself.
Which, by the way, is only the beginning of the 4th circuits problems with using Din...
