Originally Posted by
WhistlePig
You can hope. Just because strict scrutiny has traditionally been applied to state action doesn’t mean it has to be. Even Rational basis would take some tortured linguistic gymnastics. But, you never know. Heck, they can simply invoke the Commerce Clause and kill the rule.
Not so sure access to Trusted Traveler programs is a fundamental right nor are NY'ers a suspect class so that will make any argument that a court needs to apply a strict scrutiny analysis a pretty difficult hurdle. As for the Commerce Clause, who is going to invoke it? New York State? That would be a novel legal argument (usually used by the Feds against state laws) to get the Feds to lift the ban but I'm not sure how you prevail on that one. NY'ers aren't being banned from returning to the country, they just don't get expedited screening which would likely be found to be a de minimus impact on interstate commerce.
Maybe it will all be resolved after tomorrow's meeting.