Where is the limiting principle in last night’s stunning ruling in Hawaii?
For the moment, let’s leave to one side the dramatic departure from precedent — i.e., that Judge Watson simply assumed that the Establishment Clause applies to immigration policy, an assumption that has no bedfellow in all of American history — and focus instead on what that departure does to the areas in which Congress has long enjoyed plenary power.
Traditionally, America’s courts have been extremely deferential toward matters of immigration and defense, on the grounds that those areas are inherently political. If this is to change, the consequences will be dramatic. As Josh Blackman notes over at Lawfare, there is nothing in Judge Watson’s argument that couldn’t also be applied to warfare:
This conclusion will infect every Establishment Clause challenge ever brought against the President concerning Islam. Perhaps the President’s decision to use military force against a predominantly-Muslim nation could violate the Establishment Clause? (If only Justice Douglas had that tool at his disposal in Holtzman v. Schleisinger.). Nothing Trump can do would ever eliminate that taint. Nothing in McCreary stands for this limitless proposition.
“Ah,” I hear you say, “but who would have standing to bring such a case?” Well, on the evidence from last night, pretty much anybody would. Judge Watson permitted Hawaii’s case to proceed on the grounds that the state had been “harmed” by the order — specifically, on the grounds that its tourism industry might be diminished. In so doing, he followed the example set in Washington v. Trump, in which the Ninth Circuit accepted that under “the ‘third party standing’ doctrine injuries to the state universities give the States standing to assert the rights of the students, scholars, and faculty affected by the Executive Order.” Again: Where is the limiting principle here? On this extremely attenuated understanding of “harm,” couldn’t a state assert standing to sue the government over a declaration of war or the introduction of conscription? Providing that the cause of action was, say, Josh Blackman’s Establishment Clause hypothetical, a state could credibly claim that conscription hurt its local economy, or its universities, or its tax base, or its tourism sector. And if last night is our guide, it could win.
Or, put another way: If America’s courts are now holding that congressional action in areas of enumerated, exclusive authority are subject to Bill of Rights review on behalf of anyone who may be hurt, then judicial review will have been extended to absolutely everything — up to and including the decision to declare war.
And if that’s the case, we’d have a considerable structural problem, in that the states would have been given a functional veto over those areas that are explicitly reserved to Congress. If any local judge can combine dovish standing rules and an ill-defined animus standard and come up with a national injunction, then Congress will no longer be the master of the truly national issues. Typically, our federalism problems come the other way around; unbound by the enumerated powers doctrine, the federal government has for a long time usurped the prerogatives of the states. How peculiar it would be if this trouble worsened in both directions, and we ended up with the federal becoming the local and the local becoming the federal.