The Key Word for Travel Ban Is 'Animus'madhatter wrote:well except there isn't a law enacted by congress we are talking about here...we are talking about an executive order where the president at his discretion and by proclamation can impose whatever restrictions he wants for however long he wants...the previous EO was struck down on specific language that language has been eliminated...where does the current EO fail to fall in line w the presidents privilege as chief executive spelled out above?
Now that the U.S. Supreme Court has been asked to consider President Donald Trump’s travel ban, there’s one word you need to focus on: animus. In legalese, it means an illegitimate prejudice. It was the key to the lower court decisions freezing the ban. And it’s one of the master concepts in swing voter Justice Anthony Kennedy’s jurisprudence. You might even say that animus is the opposite side of the coin to Kennedy’s other great master concept, dignity.
If Kennedy reads Trump’s executive order temporarily blocking immigration from six predominantly Muslim countries as an exercise of anti-Muslim animus, the ban will fall at the court. And that seems highly likely, given that it would be difficult for the justice to downplay Trump’s prejudice without betraying his own legacy.
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For Kennedy, animus became a master concept in his 2013 gay-marriage decision, U.S. v. Windsor, which struck down the federal Defense of Marriage Act. There animus came to be paired with Kennedy’s concept of dignity.
In the Windsor case, Kennedy wrote that DOMA sought to injure gay couples who were allowed to marry by state law. The law was therefore motivated by “improper animus or purpose,” Kennedy said, citing his own Romer decision in support. (Scalia, on cue, responded that Congress was motivated not by “animus” but by “stabilizing prudence” in the presence of conflicting state laws on marriage.)
And in the Windsor case, Kennedy also famously made the point, repeated two years later in Obergefell v. Hodges, the right-to-gay-marriage case, that allowing a couple to marry conferred dignity on the partners. Taking away the right to marry therefore produced “injury and indignity.”
By implication, then, to treat a group of people with unconstitutional animus is to deny them dignity -- which adds up to a constitutional violation.
Presumably, at least some of the Supreme Court’s conservatives, channeling Scalia, will want to say that Trump’s executive order on its face does nothing to demean Muslims. But Kennedy will be under enormous pressure to pay attention to Trump’s public statements before and after the election, statements that led the lower courts to say that the travel ban was the product of anti-Muslim animus.
There remain technical questions of whether the ban violates the Constitution’s establishment clause, the free exercise clause or even the equal protection clause. But the bottom line for Kennedy is that if he ignores the animus issue that the lower courts emphasized, he runs the risk of undercutting his legacy.
For what it’s worth, I find it almost impossible to believe that Kennedy, at 80, would want to sign an opinion closing his eyes to animus, which he himself did so much to make into a constitutional touchstone. That should be enough to make sure the travel ban doesn’t take effect.
This will go slow as we're hoping to wipe out ISIS with not even a smidgen of US casualties. Go Trump 
