by Mollie Hemingway · March 16, 2017
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://t.co/z5PchLDyrO
— (((≠))) (@ThomasHCrown) March 15, 2017
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 condemns 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.