Can you explain how it's a strawman? The Muslim ban (as it has been known for a long time) is a ban on people from a particular faith.
That's the weirdest Muslim ban I've ever heard of.
It is precisely the question. What the ban is is much more important that what it purports to be.
For example, if it purported to be a ban on terrorists but actually was as ban on Muslims (and I mean, a bonafide ban on all Muslims), would that not matter?
- George Orwell, 1984
The immigration suspension ought to be legal or illegal because of what it is, not what its author thinks.
To clarify, I don't think it would be illegal for the president to establish immigration restrictions (that are otherwise legal) while thinking something bad about Muslims. The problem is intending the restrictions to target Muslims.
The difference is between manslaughter and homicide. We take age, sanity, and intent into account, but hitting someone with your car is illegal no matter your mental state.
Likewise, tax fraud (intentional) is punished differently than tax negligence (unintentional). In either case, the action is illegal, and due taxes must be paid.
I mean to say that intent (and other aspects of mental state) can influence the severity of punishment.
It shouldn't determine whether something is legal, however.
Hitting pedestrians ought to be illegal regardless of whether you intended to do it or not.
Incorrect. Now, in most cases, hitting someone while driving will be at least criminally negligent and thus be some crime, but it's not impossible for hitting a pedestrian to be a non-crime because of the absence of the mental state required for any applicable crime.
> Likewise, tax fraud (intentional) is punished differently than tax negligence (unintentional).
"Negligence" is itself a mental state. That an act is illegal (though of different magnitude) when it is done through negligence as well as intentionally does not demonstrate that mental state is relevant only to degree of punishment, not legality. (There are strict liability offenses for which mental state is not relevant to legality, only possibly severity, but strict liability is exceptional in the law, particularly criminal law.)
Out of curiosity, under what conditions would this be the case?
In general I would agree with you, you oughta look at what a legislation does in practice. But here, because there is a sense of urgency (sending a gay refugee back to Somalia, for instance, is akin to signing their death warrant) and because the executive order hasn't been around for a while, I think it's ok to refer to what the administration intended the order to do. Because we don't have a lot of field evidence. As we see concrete evidence for the effects of a legislation, I think you're right and the weight of what it was theoretically intended should decrease pretty quickly (and it usually does).
The administration also didn't present to the court any sort of evidence supporting the claim that it would prevent terrorism.
In the case of this immigration restriction, the debate isn't how the EO ought to be enforced, but rather whether it is legal (specifically whether it infringes on constitutional rights without having a sufficient national security justification). The intent of the EO is important, since it would be trivial to make a silly EO that technically doesn't infringe when taken literally. As an extreme example, the EO could ban anyone who had entered a Muslim place of worship in the last year. Surely some Muslims haven't done that, and surely some non-Muslims have done that. But it would be very clear that the intention of this EO would be to discriminate against Muslims, and it would be ludicrous to claim otherwise.
Why can't the same principals be applied here? That the pitch and language of a rule aren't important, just the implementation.
It doesn't matter what Trump thinks about the order. It's legality is the same no matter who signed it.
Do you have a source for this? There is so much political noise that the only place I've heard it is second-hand from people trying to avoid the contents of the actual executive order and block it based on feelings.
Is it though? For example of Muslim, it does not even affect about 88% of the world's Muslims (Bangladesh, Egypt, Nigeria, Turkey, Malaysia, others)
And yes, it would be significant if the US targeted the 99% of the Japanese population vs the 1% most concerning part.
Bangladesh: http://www.dhakatribune.com/bangladesh/2017/02/02/bangladesh...
Egypt: https://www.washingtonpost.com/news/worldviews/wp/2017/02/26...
Nigeria: http://indianexpress.com/article/world/donald-trump-travel-b...