1/x This will be a bit of a con Law thread but it goes to the heart of a big gap in Roberts majority. Majority opinion has 4 steps. Step 1: travel ban fits within POTUS statutory authority. Step 2: when POTUS exercises statutory authority in an area
2/x in which constitution gives him broad powers (immigration) courts will defer to him. Step 3: deferring to POTUS means reviewing the stated rationale for his action (national security) under rational basis review.
3/x Step 4: the only exception to reviewing government action under rational basis review is if action is motivated by animus or hatred toward a particular group. Using that reasoning Roberts said that Trump didn’t talk enough shit about Muslims to trigger the animus exception.
4/x The problem with that reasoning is that Kennedy said the opposite in Masterpiece. There the court said that the state commissioners who ruled against the baker showed animus toward Christians and that was enough to invalidate their action.
5/x Some people might be tempted to answer that the president’s power over immigration is broader than state commissioners over civil rights. Not so at all. States have what is constitutionally referred to as police power, which means the following:
6/x The power to enact laws and regulations that protect health, safety, welfare, and morals of its citizens. That power is huge. The only check on it is that states can’t use it in ways that violates the federal constitution.
7/x In the exercise of their police power states cannot violate religious freedom just as in the exercise of his immigration powers the president cannot violate religious freedom. If the mild statements of the Colorado commissioners were enough to invalidate their actions,
8/8 why aren’t the far more incriminating statements of the president about Muslims enough to call the ban into question. Roberts has no satisfactory answer to this question.
