[paulddraper]

> 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?

[baddox]

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.

[paulddraper]

> Thoughtcrime, they called it.

- George Orwell, 1984

[baddox]

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.

[paulddraper]

If an action that is normally legal becomes illegal if you have wrong thoughts while doing it, you are essentially legislating thoughtcrimes.

The immigration suspension ought to be legal or illegal because of what it is, not what its author thinks.

[erispoe]

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.

[baddox]

I don't think this is quite the originality vs. pragmatism debate. Determining the legality of an executive order is a bit different than determining the modern interpretation of a law.

In the case of this immigration restriction, the debate isn't how the EO ought to be enforced, but rather whether it is legal (specifically whether it infringes on constitutional rights without having a sufficient national security justification). The intent of the EO is important, since it would be trivial to make a silly EO that technically doesn't infringe when taken literally. As an extreme example, the EO could ban anyone who had entered a Muslim place of worship in the last year. Surely some Muslims haven't done that, and surely some non-Muslims have done that. But it would be very clear that the intention of this EO would be to discriminate against Muslims, and it would be ludicrous to claim otherwise.

[baddox]

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.

[paulddraper]

> There is a legal distinction between accidentally hitting a pedestrian with your car and intentionally doing so.

The difference is between manslaughter and homicide. We take age, sanity, and intent into account, but hitting someone with your car is illegal no matter your mental state.

Likewise, tax fraud (intentional) is punished differently than tax negligence (unintentional). In either case, the action is illegal, and due taxes must be paid.

[humanrebar]

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.

[paulddraper]

100% agree. It doesn't matter whether Obama intended it to be a tax, or a mandate, or a duck. It was a tax because it was.

It doesn't matter what Trump thinks about the order. It's legality is the same no matter who signed it.