Justice Elena Kagan (Screen Capture)
Posted on 04/25/2018 3:50:32 PM PDT by jazusamo
(CNSNews.com) - In oral arguments in the case of Trump v. Hawaii today, Justice Elena Kagan suggested as a hypothetical that the United States elects a president “who is a vehement anti-Semite and says all kinds of denigrating comments about Jews,” and that, once in office, this president issues “a proclamation that says no one shall enter from Israel.”
“This is an out-of-the-box kind of President in my hypothetical,” Kagan said in an exchange with Solicitor General Noel Francisco as people in the courtroom laughed, according to the transcript and audio recording of the oral arguments.
“He thinks that there are good diplomatic reasons, and there might--who knows what the future holds, that there might be good diplomatic reasons to put pressure on Israel or to say we want Israel to vote a certain way in the U.N. and this is a way to better our diplomatic hand, and so this is what he does,” said Kagan.
Trump v. Hawaii is a case that challenges the constitutionality of a proclamation President Donald Trump issued last year that bars certain aliens from eight countries from getting visas to enter the country because the governments of these countries do not allows sufficient vetting of the visas.
“The Proclamation explained that, based on the findings of the review process, these countries do not share adequate information with the United States to assess the risks their nationals pose, or they present other heightened risk factors,” Solicitor General Francisco said in the Petition for a Writ of Certiorari presented to the court in January.
In the Immigration and Nationality Act, the Congress gave the president the power to issue a proclamation such as the one Trump issued.
“Whenever the president finds the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” he law says, “he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem appropriate.”
Here is the transcript of the exchange between Justice Kagan and Solicitor General Francisco on the hypothetical anti-Semitic president:
JUSTICE KAGAN: So let me give you a hypothetical, and it's just--you know, I think that there are ways to distinguish Mandel in this case, but—but--but, you know, just in terms of thinking about what Mandel really forecloses here.
GENERAL FRANCISCO: And I--because Mandel, there are only two cases in the area, and it's--it's hard to understand the full contours of it.
JUSTICE KAGAN: I agree. So this is a hypothetical that you've heard a variant of before that the government has, at any rate, but I want to just give you.
So let's say in some future time a--a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in the course of that, asks his staff or his cabinet members to issue a proc--to issue recommendations so that he can issue a proclamation of this kind, and they dot all the i's and they cross all the t's.
And what emerges--and, again, in the context of this virulent anti-Semitism--what emerges is a proclamation that says no one shall enter from Israel.
GENERAL FRANCISCO: Right.
JUSTICE KAGAN: Do you say Mandel puts an end to judicial review of that set of facts?
GENERAL FRANCISCO: No, Your Honor, I don't say Mandel puts an end to it, but I do say that, in that context, Mandel would be the starting point of the analysis, because it does involve the exclusion of aliens, which is where Mandel applies.
If his cabinet--and this is a very tough hypothetical that we've dealt with throughout--but if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the President would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.
JUSTICE KAGAN: Well, the question is--
GENERAL FRANCISCO: I would also suggest, though--if I could finish that, Your Honor--that I think it would be very difficult for that to even satisfy Mandel rational basis scrutiny. I'd need to know what the rational was. Given that Israel happens to be one of the country's closest allies in the war against terrorism, it's not clear to me that you actually could satisfy--
JUSTICE KAGAN: Well--
GENERAL FRANCISCO: --Mandel's rational basis standard on that, unless it truly were based--
JUSTICE KAGAN: Yes.
GENERAL FRANCISCO: --on a cabinet-level recommendation that was about national security.
JUSTICE KAGAN: General, I'm--let's--this is an out-of-the-box kind of President in my hypothetical. And--
(Laughter.)
GENERAL FRANCISCO: We—we--we don't have those, Your Honor.
JUSTICE KAGAN: And--and, you know, he thinks that there are good diplomatic reasons, and there might--who knows what the future holds, that there might be good diplomatic reasons to put pressure on Israel or to say we want Israel to vote a certain way in the U.N. and this is a way to better our diplomatic hand, and so this is what he does.
And--and who knows what his heart of hearts is. I mean, I take that point. But the question is not really what his heart of hearts is. The question is what are reasonable observers to think--
GENERAL FRANCISCO: Right.
JUSTICE KAGAN: --given this context, in which this hypothetical President--
GENERAL FRANCISCO: Sure.
JUSTICE KAGAN: --is making virulent anti-Semitic comments.
GENERAL FRANCISCO: Right. And, Your Honor, it's a tough hypothetical, but it's why I also think that this is a relatively easy case, because we're willing to even assume for the sake of argument that you consider all of the statements.
And we're even willing to assume for the sake of argument, though we think that it's wrong, that you applied some kind of domestic Establishment Clause jurisprudence, because we're quite confident that, given the process and substance that form the basis of this proclamation, no matter what standard you apply, this proclamation is constitutional.
Since we don't have the extreme hypothetical that you're suggesting, Your Honor, we do have a multi-agency worldwide review and a cabinet-level recommendation that applied a neutral baseline. And this wasn't done just by the cabinet secretaries but by the agencies to every country in the world and concluded—“
We are not at war with Israel, youmoron!!! And this one is a Supreme Court judge!!!! Judas Priest!!!!!
I should have said “nominee” rather than “appointee”—I was referring to Clinton’s prior nomination of her to the U.S. Court of Appeals for the District of Columbia Circuit after she served as Clinton Associate White House Counsel.
If Israel had a dysfunctional government which was unwilling or unable to account for its citizens, provide background information, or vouchsafe
them; then excluding those persons from entering the US would be reasonable.
Ahh
First off, Not all Israelis are Jews.
Secondly, if Israel were a hot-bed of terrorism, I’d be all for it.
As it happens, Israel is one of the countries most victimized by terrorists, and we need to follow many of the vetting processes used by Israel, as well as building a wall.
Yes, I realize I should have begun this post with “Elana, you ignorant slut...”
Mark
Banning from entering the U.S. a group of people who actively carry out or supporting a terrorist ideology that even involves murdering their own people in addition to innocent bystanders, especially murdering those who refuse to convert to their ideology?
What’s wrong with banning them?!?
What if’s, eh?
What if a President blocked all women from voting?
So let's say in some future time a--a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in the course of that, asks his staff or his cabinet members to issue a proc--to issue recommendations so that he can issue a proclamation of this kind, and they dot all the i's and they cross all the t's.
OK, so the first thing that needs to be demanded of this idiot "judge" and everyone who claims this crap is, "State exactly, as in directly quote, what "denigrating comments" they attribute to President Trump. I hear them claim that because President Trump referred to rapist illegal aliens, he meant that ALL illegal aliens are rapists. Well, that claim is no different than the illegal alien supporters claiming that NONE of the illegal aliens are rapists. We need to begin berating these idiots for trying to bend the language to their means. They're attempting to adopt "NewSpeak."
Mark
what an effing can’t see the forest for the trees libtard
Yep, she proved herself to be a complete idiot here. IQ of a fence post.
“...proclamation that says no one shall enter from Israel. ..”
As Kagan, speaking as hypothetical, if Israel was a terrorist state and that terror was aimed at the US, then yes, they should be banned.
But, such is not the case.
This is a level of puerile, banal argumentation that comes from a very shallow mind.
It is malinformed and falsely casts the presidents so-called “travel ban” (which nobody had any trouble with when it was issued by 0bama, but now, now that Trump has uttered potentially disparaging words against some people from some countries who might or might not do whatever they might or might not do, it is a policy born from racism and nationalism. And so, far more educated folks like this dwerb Kagan who think they exist on a higher moral pedestal than the plain language of the Constitution and prior rulings of the USSC vis a vis Arizona think they are empowered to spew their pseudo-intellectual vapidity.
It’s a really dumb hypothetical, really misguided, a very weak argument, and shows she lacks any sort of intellectual depth.
Kegels. Crotch muscle-squeezes.
Is this the same as FDR turning away the Ship full of German Jewish Refugees in 1939?
Sure glad the SCOTUS stopped him from doing that, oh wait.
Great points!
When you ask lowlife leftists (such as young people) What is it exactly Trump said that makes you hate him? They’ll say his racist comments,his anti-women comments,his policies to stop all Muslims from having rights, etc. NONE of which are based in fact—just MSNBC and CNN summaries by biased announcers agreeing with each other.Do leftists really want killers, rapists, mental cases and terrorists to enter freely and set up shop in their suburbs? In London they say “yes.”
She does look like the average bear though. 8>)
FYI, she’s a Jewish one; Sotomayor is the Latina one. :)
If people are coming in from Israel and we dont know who they are AND a bunch of them have been trained in camps to kill people and blow stuff up, then hell yes, stop letting Israelis into the country!
But... that’s not where they’re coming from, is it?
Stupid cow...
Yes she does. :^)
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