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Authority and Motivation (Trump v. Hawaii)
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Native Georgian Online
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Authority and Motivation (Trump v. Hawaii)
Reading the different reactions to the Trump v Hawaii decision, I’m really struck how the 4 dissenting justices, and the anti-Trump segment of the public, seems convinced that the Exec. Order(s) should have been struck down explicitly because Trump’s motives were unacceptable/racist/offensive/etc.

Questions: prior to this case, has any SC justice or lower federal judge — whether writing for the Court or in dissent/concurrence — ever held that the personal motivations that gave rise to an act of presidential authority were a justiciable issue? Put another way, has any federal judge ever claimed that an action which was otherwise valid, or potentially valid, could nevertheless be struck down as null/void based on the president’s motives for taking that action?
(This post was last modified: 07-01-2018 08:07 AM by Native Georgian.)
06-26-2018 05:40 PM
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tanqtonic Offline
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RE: Authority and Motivation
No.

In fact the dissent was even more troubling that what you state. When you combine the dissent(s) and read them along with the oral argument, it is clear that had this been *any* other person in the President's office the actions would not be a 'legal' issue for the 4 dissenters.

The dissents were as close to a political sheet as I have ever seen any printed opinion.

The majority opinion and concurrences make clear that the 5 in those clearly see the issue as one of Presidential powers -- period. The dissenting votes make it clear that Presidential powers are clearly subject to 'personal attitudes' of the office holder. I think that is a real problem with that viewpoint.

But, those viewpoints go lock, stock, and two smoking barrels in step with the differences between the 'textualists' view of Constitutional and statutory law and the 'living document' belief outlook.

Clearly some people think that rule de jour is preferable to rule of law, and subjective inquiries are a perfectly good standard to judge adherence to the actual text.
06-26-2018 11:30 PM
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Native Georgian Online
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RE: Authority and Motivation
Agree with tanqtonic’s remarks.

After having read all the opinions in this case, it does appear that only Sotomayor and Ginsburg went full-on, explicitly “Trump is bad, so the EO is bad.”

Breyer and Kagan were more like “This EO looks bad but we need more information to be really 100% sure.”
07-01-2018 08:06 AM
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