Popehat on the NIFLA and travel ban decisions:

NIFLA probably spells the doom of those "Doctors may not ask about guns" statutes. And it will be used -- not successfully, I think -- to attack statutes prohibiting so-called "conversion therapy."

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SCOTUS' decision in Trump v. Hawaii has statutory parts, but also has a First Amendment part -- the claim that the administration enacted the travel ban out of religious animus. The majority's rejection of that argument is important not just in this case but in others./1

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In constitutional law, you often choose the outcome of the case by choosing the test/standard that applies. So too here.

The question for SCOTUS was this: how do you handle extrinsic evidence of bigotry (Trump's statements about Muslims) when the law is neutral on its face? /2

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/3 Put another way, when a law doesn't draw impermissible distinctions (like saying "no Muslims may immigrate&quot in its text, how do you handle evidence that the intent behind the law was discriminatory?

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/4 The SCOTUS majority answers that in this context by emphasizing that control over entry and exclusion of foreign nationals is a "fundamental sovereign attribute" largely insulated from judicial review. Based on that, the majority decides to apply the "rational basis" test.

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/5 The rational basis test is the test your mother applies to determine whether you are a nice boy. Of course you are. The rational basis test asks only whether there is ANY plausible non-discriminatory basis whatsoever that could be articulated to support the law,

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/6 Applied here, the majority finds that one could articulate legitimate non-discriminatory grounds for the law, so -- despite evidence of Trump's own words showing religious animus -- the law passes the rational basis test.

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/7 This doesn't necessarily mean that extrinsic evidence of religious animus will never overturn a law. The Court applies the rational basis test based on the concept that immigration is a core sovereign power insulated from review. Other types of laws may get other tests.

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/8 But the upshot is this: the majority says that the President of the United states can revile Muslims and say he wants to ban them, but as long as his law is facially neutral and someone can make up a neutral argument for it, it survives. /end

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ThisIsNotNormalHat Retweeted:

Korematsu is officially overruled

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