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Wednesday, May 10, 2017

In Fourth Circuit Hearing on Obama's Travel Restrictions, ACLU Lawyer Admits, Sure, This Executive Order Might Be Legal if Hillary Clinton Signed It

Via Ace of Spades

Well, this was all pretty much implied from the lower courts' reasoning -- which always centered not on the law itself, but on statements Trump made (or was alleged by Rudy Giulliani to have made).

Minus those statements, then the EO passes muster. It's facially constitutional. But they're saying a bad man wants to pass it, which makes it unconstitutional by prior statements.

There is no such category. Courts distinguish between a law, order, or rule being facially unconstitutional -- the law or order or rule's own words themselves contain unconstitutional directives -- and unconstitutional-as-applied, where a mandate may be written in a way that is perfectly constitutional, but as actually applied by officials, is discriminatory. A good example of this, which courts aren't bothered by at all, is that "hate crimes" legislation is mostly executed in an unconstitutional-as-applied way: It's mostly a crime that only white people can be guilty of.

But while those distinctions exist, there is no "facially constitutional but unconstitutional because Trump is a very bad man who uses very bad words" category.

And in fact you can't even fault this directive for being discriminatory -- Presidents are permitted to be discriminatory as regards non-US-citizens coming into the country.

The ACLU lawyer, quizzed by judges on this strange new doctrine they were arguing for, admitted that sure, Hillary Clinton signing the same EO would be perfectly constitutional, because she's not a Very Bad Man like Trump.

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