The Potential Consequences of Judge Watson’s Ruling

by Fred Bauer

The sweeping nature of Hawaii federal district-court judge Derrick Watson’s ruling could have political consequences that go far beyond President Trump’s travel ban.

As Joshua Blackman and other legal observers have suggested, this ruling could have sweeping legal implications for much of U.S. immigration policy. Breaking from longstanding judicial precedent, Judge Watson’s ruling would endanger components of existing U.S. refugee policy and would seem to undermine the constitutionality of laws such as the Lautenberg amendment, a bipartisan effort to help religious minorities in the Soviet Union immigrate to the United States.

Judge Watson’s ruling could also have effects on the future formulation of immigration policy. The more federal judges look willing to upend precedent and implement their personal immigration-policy preferences through their rulings, the more difficult it will be to forge a congressional consensus on immigration reform. This would be especially true for any efforts to trade increased enforcement of immigration laws for legal status for some illegal immigrants. Many enforcement hawks might look at Judge Watson’s ruling as a warning flare: The enforcement component of any “comprehensive” bill could quickly be gutted by judicial ideologues, leaving only the legalization. Because of its lack of limiting principles, the same reasoning used by Judge Watson could, with a few tweaks, be used to nullify many efforts at immigration enforcement.

Thus, this ruling may have taken a sledgehammer to the hopes of a grand “comprehensive” immigration-reform bill, which admittedly was probably unlikely in the first place. Ramesh Ponnuru has reported that Lindsey Graham himself no longer favors one big immigration bill, instead preferring a series of compromise bills that would trade waves of legalization for other immigration measures (such as increased enforcement or a more opportunity-based immigration system). But a federal judiciary willing to overthrow constitutional norms in order to “resist” President Trump could endanger Senator Graham’s vision of piecemeal reform, too. By granting increased constitutional protections to foreign nationals living abroad, Judge Watson’s ruling might open the door to judicial intervention in reforms of the legal-immigration system. For instance, perhaps a judge could divine some “animus” in a shift to a skills-based immigration system and use this “animus” to nullify changes to the legal-immigration system.

A theme of the past few months has been political actors willing to overthrow many healthy political norms in order to stop Donald Trump. However, just as history did not begin with Donald Trump, it does not end with him, either. Some partisans might cheer any restriction on the power of President Trump, but the process that led to those restrictions might have far-reaching consequences. So it is with immigration policy. A judiciary untethered by constitutional norms might poison the atmosphere for legislative efforts at immigration reform.

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