Yet it was sold as a Muslim ban by the administration, which is a major reason for San Francisco's federal appeal court to suspend it. The fact that it's not an effective Muslim ban is a different question.
> The fact that it's not an effective Muslim ban is a different question.
It is precisely the question. What the ban is is much more important that what it purports to be.
For example, if it purported to be a ban on terrorists but actually was as ban on Muslims (and I mean, a bonafide ban on all Muslims), would that not matter?
No, that would still be illegal, because a ban on Muslims is illegal. It is illegal to ban Muslims, and it is illegal to intend to ban Muslims. The latter reason is the one provided by the Ninth Circuit.
I don't see the comparison. One is criminalizing citizens having negative thoughts about an oppressive government. The other is prohibiting rulers from promising to discriminate against a religion and then passing a thinly-veiled bill to do so.
You're summarizing the debate between "originalism" and "pragmatism" theories of judicial interpretation. The former looks at what people supposedly intended and confines the meaning of the text to that. It's the weapon of choice of conservative justices (because of course, the Founding Fathers couldn't intend to give marriage equality). The latter looks at what the text does, in today's context. It's the approach preferred by progressives because it accounts for how the effects of a text can change with time (and society).
In general I would agree with you, you oughta look at what a legislation does in practice. But here, because there is a sense of urgency (sending a gay refugee back to Somalia, for instance, is akin to signing their death warrant) and because the executive order hasn't been around for a while, I think it's ok to refer to what the administration intended the order to do. Because we don't have a lot of field evidence. As we see concrete evidence for the effects of a legislation, I think you're right and the weight of what it was theoretically intended should decrease pretty quickly (and it usually does).
The administration also didn't present to the court any sort of evidence supporting the claim that it would prevent terrorism.
I think there's a clear difference between all thoughts and intentions. Intentions are a subset of thoughts. There is a legal distinction between accidentally hitting a pedestrian with your car and intentionally doing so. I don't consider that thought crime.
To clarify, I don't think it would be illegal for the president to establish immigration restrictions (that are otherwise legal) while thinking something bad about Muslims. The problem is intending the restrictions to target Muslims.
But the ACA mandate was supposed to be a mandate or a penalty, not a tax. The Supreme Court ruled that it looked like a tax and quacked like a tax, so it's legal as a tax.
Why can't the same principals be applied here? That the pitch and language of a rule aren't important, just the implementation.
>Yet it was sold as a Muslim ban by the administration
Do you have a source for this? There is so much political noise that the only place I've heard it is second-hand from people trying to avoid the contents of the actual executive order and block it based on feelings.
Giuliani said on national television that Trump asked him how he could legally ban Muslims. He boasted that he came up with the idea that banning countries would be legal because it's based on nationality, not religion. When asked why he didn't ban countries that we know sponsored terror attacks like Saudi Arabia, he said they have changed.
It is precisely the question. What the ban is is much more important that what it purports to be.
For example, if it purported to be a ban on terrorists but actually was as ban on Muslims (and I mean, a bonafide ban on all Muslims), would that not matter?