What Masterpiece Cakeshop Tells Us About the Travel Ban
// 6/8/18 //
After the Court handed down Masterpiece Cakeshop, I wrote a quick post on this blog in which I argued that "several aspects of the Court’s opinion in Masterpiece Cakeshop that, if taken seriously, would dispose of several of the government’s arguments in the entry ban litigation (Trump v. Hawaii). I recently expanded on the post in a piece for the National Law Journal, which you can read here. I noted the caveat that:
The court is not always consistent in its reasoning. And there are ways one could distinguish the entry ban case from Masterpiece Cakeshop, though none of them are especially persuasive. Yes, the entry ban pertains to immigration, but immigration is not a Constitution-free zone. Likewise, the entry ban challenge involves the president rather than a state official, but the president is bound by the First Amendment to the Constitution just as state officials are. And while some of the president’s animus-laden statements happened before the entry ban, he never disavowed them, and instead implicitly affirmed them by insisting that the entry ban fulfills promises he had made.