Muslims from Algeria (99% of the population) can enter. Christians from Syria cannot.

That's the weirdest Muslim ban I've ever heard of.

It's almost as if it were a muslim ban as applied by ignorant people... As if!

It's a temporary ban of seven countries that was drafted by the Obama administration.

That very name is the strawman. The ban doesn't even target the largest Muslim countries.

Yet it was sold as a Muslim ban by the administration, which is a major reason for San Francisco's federal appeal court to suspend it. The fact that it's not an effective Muslim ban is a different question.

> The fact that it's not an effective Muslim ban is a different question.

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?

No, that would still be illegal, because a ban on Muslims is illegal. It is illegal to ban Muslims, and it is illegal to intend to ban Muslims. The latter reason is the one provided by the Ninth Circuit.

> Thoughtcrime, they called it.

- George Orwell, 1984

I don't see the comparison. One is criminalizing citizens having negative thoughts about an oppressive government. The other is prohibiting rulers from promising to discriminate against a religion and then passing a thinly-veiled bill to do so.

If an action that is normally legal becomes illegal if you have wrong thoughts while doing it, you are essentially legislating thoughtcrimes.

The immigration suspension ought to be legal or illegal because of what it is, not what its author thinks.

You're summarizing the debate between "originalism" and "pragmatism" theories of judicial interpretation. The former looks at what people supposedly intended and confines the meaning of the text to that. It's the weapon of choice of conservative justices (because of course, the Founding Fathers couldn't intend to give marriage equality). The latter looks at what the text does, in today's context. It's the approach preferred by progressives because it accounts for how the effects of a text can change with time (and society).

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.

I don't think this is quite the originality vs. pragmatism debate. Determining the legality of an executive order is a bit different than determining the modern interpretation of a law.

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.

I think there's a clear difference between all thoughts and intentions. Intentions are a subset of thoughts. There is a legal distinction between accidentally hitting a pedestrian with your car and intentionally doing so. I don't consider that thought crime.

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.

> There is a legal distinction between accidentally hitting a pedestrian with your car and intentionally doing so.

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.

> 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.

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.)

> 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.

Out of curiosity, under what conditions would this be the case?

I don't follow your argument. This car example seems to qualify under your definition of thought crime.

Sorry for being unclear.

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.

Accidentally killing someone is not, in general, illegal. It typically would be if you did it while driving a car, as in this instance it would probably result from negligence on your part. But if you, say, trip over, bump into someone and then accidentally knock them off a ledge, you haven't committed a crime.

But the ACA mandate was supposed to be a mandate or a penalty, not a tax. The Supreme Court ruled that it looked like a tax and quacked like a tax, so it's legal as a tax.

Why can't the same principals be applied here? That the pitch and language of a rule aren't important, just the implementation.

100% agree. It doesn't matter whether Obama intended it to be a tax, or a mandate, or a duck. It was a tax because it was.

It doesn't matter what Trump thinks about the order. It's legality is the same no matter who signed it.

>Yet it was sold as a Muslim ban by the administration

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.

Giuliani said on national television that Trump asked him how he could legally ban Muslims. He boasted that he came up with the idea that banning countries would be legal because it's based on nationality, not religion. When asked why he didn't ban countries that we know sponsored terror attacks like Saudi Arabia, he said they have changed.

> a ban on people from a particular faith

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)

[1] https://en.wikipedia.org/wiki/Islam_by_country

It's trivial to find stories of people being detained trying to enter from any of those countries.

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...

I don't see why the percentage of Muslims in the world is relevant. The internment of Japanese Americans in the 1940s certainly targeted Japanese people despite that being a small percentage of Japanese people in the world.

The US didn't intern Japanese. They interned Japanese Americans, so that is the scope of discussion.

And yes, it would be significant if the US targeted the 99% of the Japanese population vs the 1% most concerning part.