Judge Kozinski warned that the Court’s analysis would lead to the type of “judicial psychoanalysis” the Supreme Court has warned against, whereby judges seek to determine unstated motives behind legislation or executive orders.
Judge Bybee also faulted the Court’s misuse of the Establishment Clause.
“[W]e do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.”
Finally, Judge Bea faulted the Court for granting the States standing to file the case in the first instance.
“States may not sue the Federal Government to assert due process rights for themselves, nor for their residents—much less nonresident aliens—under the Fifth Amendment, because the States are not proper party plaintiffs.”