A federal judge in Hawaii relied on his feelings and flawed interpretation of Trump's campaign rhetoric to block his latest travel ban.
Hours before it was to take effect, a federal judge in
Hawaii put President Donald Trump’s latest Middle East travel ban on hold. The
executive order, which was a loosened version of a previous version struck down
by another court, suspends entry to the United States for 90 days from nationals
of Iran, Libya, Somalia, Sudan, Syria, and Yemen. It also suspends the U.S.
Refugee Admissions Program for 120 days.
“This is an unprecedented judicial overreach,” Trump said
of Judge Derrick Watson’s order, during a rally in Nashville.
Whether you agree or disagree with the executive order —
and there are plenty of people on both sides of that debate, for many different
reasons — the judge’s ruling has some serious problems. Here are a few of them.
1. Feelings, Nothing More Than Feelings
Trump said the temporary travel restriction was needed
for national security. In issuing his temporary restraining order, Watson said
Trump’s order was a result of nothing more than religious animus against
Muslims. The judge’s order is predicated on what he thinks Trump wants to do,
not the order itself.
Throughout the ruling, Judge Watson concedes there’s
nothing about the executive order that would be problematic if not for his
interpretation of Trump’s statements made in the months and years prior to
issuing it. He repeatedly states his feeling that Trump had a bad motive in
issuing the order.
Judges using campaign rhetoric to infer intent instead of
plainly evaluating the law as written is a dangerous development. Also because
the public can witness the selective use of this trick, it undermines
confidence in the judiciary at a time when the judiciary can’t afford too much
erosion of trust.
Imagine, for instance, if judges ruled that the Obama-era
Health and Human Services mandate forcing nuns to pay for birth control and
abortifacients against their religious will was motivated by President Barack
Obama’s religious animus, since he had made derogatory comments during his
campaign about people bitterly clinging to God. Judges have ruled against
powerful mandates such as that one for much better reasons than a parsing of
Obama’s campaign rhetoric or political speeches.
Or remember when the Supreme Court saved Obamacare by
ruling it constitutional because the individual mandate — the penalty people
had to pay for not buying health insurance — could be considered a tax? They
ruled that way despite the fact that President Obama repeatedly maintained that
the mandate was not a tax. Or as one attorney on Twitter joked:
---
"Your Honor, the President said if you
like your plan you can keep it. Clearly, many can't. Strike down the law."
"So ordered." https://twitter.com/cheeriogrrrl/status/842159754625589249 …
---"So ordered." https://twitter.com/cheeriogrrrl/status/842159754625589249 …
Throughout his ruling, Watson shifts from discussing
Trump’s campaign rhetoric to the executive order itself. In this sense,
Watson’s decision looks to be largely a rewrite of a February decision issued by Judge Leonie Brinkema in Aziz v.
Trump.
The restraining order is a commentary on Trump rather
than the executive order he promulgated. Law professor Josh Blackman wrote of the earlier Brinkema ruling that the judge had
“applied a ‘forever taint’ not to the executive order, but to Donald Trump
himself.” In defending the earlier executive order that limited travel from
seven countries, the government pointed out the naming of those countries as
requiring “special scrutiny” by the Obama administration.
Brinkema wrote, “Absent the direct evidence of animus
presented by the Commonwealth, singling out these countries for additional
scrutiny might not raise Establishment Clause concerns; however, with that
direct evidence, a different picture emerges.” In other words, if Obama
selected those countries for extreme vetting, she would find it lawful but
because Trump had, it was unlawful.
As Blackman notes, “No matter that Trump excluded
forty-three other Muslim-majority nations that account for 90 percent of the
global Muslim population. Even though three of the included nations are
state-sponsors of terrorism! It will always a ‘Muslim ban’ because of comments
he made on the O’Reilly Factor in 2011, a policy he adopted in 2015, and
abandoned after his lawyers told him it was illegal. She admits as much. ‘A
person,’ she writes, ‘is not made brand new simply by taking the oath of
office.’ Not the policy. The person. Trump.”
Watson essentially makes the same point in his
restraining order. Even though his own ruling notes the evolution in Trump’s
rhetoric from a “Muslim” ban to a restriction on certain “territories,” in his
view the original motivation of the man remains and forever taints the immigration
policy of the executive branch for all time, no matter the words of the policy
itself.
2. Selective Quotations
Watson’s temporary restraining order focuses exclusively
on campaign rhetoric from Trump and his advisors. He dismisses the government’s
desire to “focus on the Executive Order’s text, rather than its context” by
waving it away and discussing Trump’s press releases and cable news talking
points. But those statements are selectively quoted.
For instance, Watson quotes Rudolph Giuliani as saying,
“When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up.
He said, ‘Put a commission together. Show me the right way to do it legally.'”
Well, yes. Giuliani further explains how he put together
a commission featuring judge and former attorney general Michael Mukasey,
Chairman of the Homeland Security Committee Michael McCaul, and other expert
lawyers. He says they focused on “instead of religion, danger. The areas of the
world that create danger for us, which is a factual basis, not a religious
basis. Perfectly legal, perfectly sensible.” He reiterated that the ban was
“not based on religion. It’s based on places where there are substantial
evidence that people are sending terrorists into our country.”
If you’re going to quote the man, quote the man. Yet if
he’d done that, he would not have been able to write that “These plainly-worded
statements… betray the Executive Order’s stated secular purpose.”
3. Unforced Errors
Watson favorably cites the plaintiffs’ condemnation of Trump
for saying the following about his earlier executive order that gave priority
to persecuted religious minorities such as Christians and Yazidis:
In a
January 27, 2017 interview with Christian Broadcasting Network, President Trump
said that persecuted Christians would be given priority under the first
Executive Order. He said (once again, falsely): ‘Do you know if you were a
Christian in Syria it was impossible, at least very tough to get into the
United States? If you were a Muslim you could come in, but if you were a
Christian, it was almost impossible and the reason that was so unfair,
everybody was persecuted in all fairness, but they were chopping off the heads
of everybody but more so the Christians. And I thought it was very, very
unfair. So we are going to help them.’
Once again, falsely? Once again, falsely? It’s mildly
disconcerting the judge would know so little about persecuted religious
minorities in the region relevant to the travel ban. Here’s a report from
September of last year:
The
Obama administration hit its goal this week of admitting 10,000 Syrian refugees
— yet only a fraction of a percent are Christians, stoking criticism that
officials are not doing enough to address their plight in the Middle East.
Of
the 10,801 refugees accepted in fiscal 2016 from the war-torn country, 56 are
Christians, or .5 percent.
A
total of 10,722 were Muslims, and 17 were Yazidis.
The
numbers are disproportionate to the Christian population in Syria, estimated
last year by the U.S. government to make up roughly 10 percent of the
population. Since the outbreak of civil war in 2011, it is estimated that
between 500,000 and 1 million Christians have fled the country, while many have
been targeted and slaughtered by the Islamic State.
In
March, Secretary of State John Kerry said the U.S. had determined that ISIS has
committed genocide against minority religious groups, including Christians and
Yazidis.
Once again, falsely? What’s false about what Trump said
in that interview from which we’re supposed to deduce so much intent and
motivation?
For more, read Nina Shea’s Wall Street Journal
piece “The U.S. and U.N. Have Abandoned Christian Refugees.”
4. Confusion about the Establishment Clause
The plaintiffs in the case before Judge Watson said the
executive order denies them their right to associate with family members
overseas and results in “having to live in a country and in a State where there
is the perception that the Government has established a disfavored religion.”
Watson uses the three-part Lemon test for the
First Amendment. That means the law must have a primary secular purpose, may
not have the principal effect of advancing or inhibiting religion, and may not
foster excessive entanglement with religion. Watson says it fails the first
part of the test. Yet the idea that the executive order has no secular purpose
is laughably wrong. One can disagree with the executive order or its goals
without denying that those goals are secular.
Watson admits that the executive order doesn’t
discriminate for or against any religion or for religion versus non-religion.
He admits that the executive order doesn’t even mention anything about
religion. He notes that the government defended the religious neutrality of the
text and noted what a small percentage of global Muslims the ban covers. But he
says “The illogic of the Government’s contentions is palpable.” He says you can
demonstrate animus without targeting the entire population and besides, the
countries targeted involve a lot of Muslims.
The problem is that Watson neglects to note that the
Establishment Clause has not been held by courts to apply to immigration
policy. Back to Blackman:
Two
decades ago, immigration scholar Enid F. Trucios-Haynes observed in the
Georgetown Immigration Law Journal that applying the Supreme Court’s
Establishment Clause jurisprudence to long-standing immigration laws ‘is
particularly awkward.’ Under either the Lemon test or the related ‘endorsement’
test, a facially neutral law with a non-secular purpose is constitutionally
suspect. A law that prefers religion over non-religion is very likely
unconstitutional. A law that overtly prefers certain religious sects over others
is almost certainly unconstitutional. Yet, immigration law routinely does all
of the above, and neither Congress nor the courts have expressed even the
slightest concern for the Establishment Clause—that is, until President Trump’s
executive order.
Blackman looks at major court cases that have shown
preference or favor for one religious group over another, or religious over
non-religious, and the courts and other branches of government don’t seem
particularly concerned about violations of the Establishment Clause. That’s not
to say they couldn’t develop an opposition to immigration policy that benefits
persecuted religious minorities, or restricts entry to particular regions with
majority religions, but they haven’t demonstrated it thus far.
“My tentative conclusion is the Establishment Clause, in
light of foreign policy concerns and Congress’s plenary powers over
naturalization, simply has not applied with full force to immigration law,”
Blackman writes. He notes that the landmark 1965 Immigration and Nationality
Act includes a section designed to root out discriminatory quotas. That section
specifically and intentionally doesn’t include religion in the list of what
can’t be discriminated against.
5. Judicial Overreach
“This grandstanding judicial supremacism has to stop,” wrote Roger Kimball. Indeed, it’s hard to see how the
logic of this temporary restraining order would ever permit a Trump
administration to have any immigration policy whatsoever with regard to
majority-Muslim countries.
What’s more, the idea that these courts are putting forth
that restricting entry to a country with a majority religion suggests bias
against that entire religion would make any and all immigration policy
unconstitutional. Very few countries don’t have a majority religion, after all.
Regardless of one’s views on the particulars of this
executive order and its efficacy, the ability to determine who can enter the
country is one of the most obvious and important sovereign decisions a people
makes. That power is vested in the executive branch and should not be enjoined
by rogue judges. Unelected and unaccountable judges ignoring the law in favor
of their feelings is a threat to self-government and rule of law. It needs to
stop.
Mollie Ziegler Hemingway is a senior editor
at The Federalist.
