2 ms·
I'm surprised that reciprocity wasn't the main argument used to justify the ban because it's way more defensible than the "foreign influence" argument. Bear in
by jmyeet 2y ago
I'm surprised that reciprocity wasn't the main argument used to justify the ban because it's way more defensible than the "foreign influence" argument.
Bear in mind, that all these constitutionality arguments are, ultimately, just completely made up, judges like to maintain this veneer of credibility. SCOTUS in particular is a political institution so you will find judges routinely tying themselves into pretzels to rationalize some political position.
Here's an example that relates to commerce vs free speech: 35+ states have what are called anti-BDS laws. To be a teacher in Texas, for example, you have to sign a contract saying you will never criticize the state of Israel [1].
"How can such a thing be unconstitutional?" I hear you ask. It should not be. This is clear restraint on speech by government authority. Why isn't it? Because the courts invented the logic that this is commerce not speech and you can't prove that commerce is speech so it can be regulated in a way speech cannot.
But reciprocity is a completely defensible position, legally and politically. China doesn't allow a bunch of US tech companies to compete in China and, when they do, the deck is stacked against them such that the Chinese local equivalent always wins.
I get why China does this and take no position on it but the US would be entirely justified in doing exactly the same thing.
[1]: https://www.npr.org/2018/12/26/680129742/texas-school-employee-suing-over-pro-israel-oath https://www.npr.org/2018/12/26/680129742/texas-school-employ...