7th Circuit To Mike Pence: You’re A Racist

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Kevin Daley Supreme Court correspondent
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The 7th U.S. Circuit Court of Appeals let fly a string of ruthless rhetorical barbs in a ruling Monday, which essentially characterized Republican vice presidential nominee and Indiana Gov. Mike Pence as racist.

At issue was an executive order Pence issued banning state agencies from disbursing federal funds to organizations resettling Syrian refugees. The order was challenged by Exodus Refugee International, which argued it was a prima facie violation of the Immigration and Nationality Act, since the order targets individuals of a specific nationality.

The three-judge panel was scathing in its evaluation of Indiana’s arguments at oral argument last month. Judge Richard Posner could summon practically no patience, reacting incredulously to Indiana Solicitor General Thomas Fisher’s arguments. (RELATED: Judges Rip Indiana Lawyer Fighting To Keep Syrian Refugees Out Of State)

“Honestly!” the judge bellowed. “You are so out of it! You don’t think there are dangers from other countries?”

Posner authored today’s opinion for a unanimous panel. He kept no powder dry. He writes:

He argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting of Syrian refugees is discriminating on the basis of nationality. 

Posner was joined by Judge Frank Easterbrook, a Ronald Reagan appointee, and Judge Diane Sykes, a George Bush appointee. Sykes is included on the list of jurists Republican presidential nominee Donald Trump has promised to consider for an appointment to the U.S. Supreme Court.

Ian Milhiser, justice editor at ThinkProgress, suggested the ruling says less about Sykes and more about Indiana’s bad faith.

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