Posted on 06/26/2018 1:33:30 PM PDT by Jacquerie
THOMAS, J., concurring. I join the Court’s opinion, which highlights just a few of the many problems with the plaintiffs’ claims. There are several more. Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. See Webster v. Doe, 486 U. S. 592, 600 (1988). Nor could it, since the President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14). Further, the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. See Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 6); Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 52–53 (2004) (THOMAS, J., concurring in judgment). The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. See United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990). And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive. Merits aside, I write separately to address the remedy
2 TRUMP v. HAWAII THOMAS, J. I join the Court’s opinion, which highlights just a few of the many problems with the plaintiffs’ claims. There are several more. Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. See Webster v. Doe, 486 U. S. 592, 600 (1988).
Nor could it, since the President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14). Further, the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. See Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 6); Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 52–53 (2004) (THOMAS, J., concurring in judgment). The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. See United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990). And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive.
Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common.
District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.
I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.
“So, The President is duty bound to disregard such an order in districts outside the one where the judgement was issued. Then to test, disregard to test constitutionality as a separate issue.”
It is commonplace for different federal circuit courts to come to different decisions on the same issue. When that happens, the holding of one circuit court prevails on that issue but only within that circuit. In the other circuit, that court’s ruling would hold sway. If either decision went up to the SC, then the discrepancy between the circuits can be resolved.
In my opinion, if a federal district court judge declared a nationwide injunction, that injunction should be deemed to be valid in that district only, and the President should ignore it in every other district.
Well, it is is 'huge' in that we do seem to have one supreme court justice that actually gets it. However, no other justices signed on to his concurrence, so you have to pretty much figure they are fine with the district court power grab.
Agreed, that it's great to read, and the overall decision was a good one, and a major slap-down to the courts that were usurping Trump's authority, but we need to clone Thomas. Eight times.
.
Clear thinking is never wellcome to the Fascist left.
Clear signal to district courts to knock off the nationwide injunctions! You don’t have that authority!
If Mark Taylor really DID hear from God, one will die (Scalia), 2 will retire, and 2 will resign due to scandal. Time will tell. (I keep hearing rumors about Roberts and pedophilia. No idea if they’re true.)
I’m thinking that what sounds, to us, like a moderate rebuke of the District Courts, is probably much more earth shattering, just as certain quietly stated diplomatic statements sound just so-so to us, but in the diplomatic world, are considered unmistakable warnings, with huge consequences.
Okay, from here it could get interesting.
The SCOTUS could indeed reign in these arrogant district judges. However, there is even a bigger threat that the Senate and House Judiciary Committees could write that into law.
The constitution only mandates the SCOTUS. The existence and everything lower courts do is determined by congress.
So Justice Thomas if offering them the chance to reform themselves, which if they refuse might end up getting their teeth kicked in.
Yes it is a stark warning. Stop it before the SCOTUS is required to rule against the practice.
Because you need a case or controversy ON THAT SPECIFIC, NARROW POINT. The Court traditionally only rules very narrowly, without making sweeping decisions on all issues that are presented in a case.“That’s an understatement. The question is why doesn’t SCROTUS vacate these universal injunctions(unconstitutional edicts)?” - Electric Graffiti
It’s not obvious to me how a case or controversy “on that specific, narrow point” arises.If I appeal a district court opinion and am vindicated at SCOTUS, the issue is moot. If I appeal and am denied by SCOTUS, the issue is moot.
Maybe you are saying that the loser in the district court in one district stonewalls that district judge in another district, and forces someone to oppose you in the other district. But that doesn’t involve SCOTUS, which doesn’t then get the case in controversy.
It just seems weird for a district judge to make an injection which he claims is binding outside his district. But how does it reach SCOTUS?
“It just seems weird for a district judge to make an injection which he claims is binding outside his district. But how does it reach SCOTUS? “
Thanks, I missed Ancesthntr’s post. Good question...It seems that a universal injunction from a lower court is SCOTUS territory. The supreme court should have the ability to reach down and then slap down(vacate) these unconstitutional edicts from the lower courts...
“It’s not obvious to me how a case or controversy “on that specific, narrow point” arises.”
1) Trump does something official;
2) Someone sues to stop that action in some friendly District Court (why not Hawaii again?);
3) The judge rules that Trump can’t execute X action, not just in that district, but anywhere else;
4) Trump cites this case, and does X action ANYWAY, despite the order;
5) The case now gets appealed to the Circuit Court, with the request for penalties against the government (plus, of course, calls for impeachment throughout the media);
6) The Circuit Court rules either way, and it gets appealed up to the USSC.
Ping to #51
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