Law & the Courts

Another Dangerous Travel-Ban Ruling

Hawaii AG Douglas Chin speaks at a press conference after filing an amended lawsuit against Trump’s new travel ban (Reuters: Hugh Gentry)

We thought it well-nigh impossible to outdo the Ninth Circuit Court of Appeals for foolish, dangerous legal reasoning, but Honolulu district judge Derrick Watson has managed it. On Wednesday evening, Watson issued a nationwide temporary restraining order against the Trump administration’s revised executive order on refugees, unveiled last week.

In February, addressing itself to the White House’s original order, the notoriously liberal Ninth Circuit upheld a Seattle-area judge’s nationwide injunction on the previously unknown legal ground that immigration policy is under the purview of the judiciary. As we wrote at the time, the Ninth Circuit’s ruling was so broad as to effectively abrogate the separation-of-powers doctrine in national-security policymaking. According to the court, the president and Congress — the branches constitutionally accorded power over national-security policy — may take no actions to protect the country without the express permission of the judiciary. This would have come as a surprise to the designers of the 1965 Immigration & Naturalization Act, let alone to the Framers.

Judge Watson, though, has matched the Ninth Circuit in express disregard for the letter of the law.

The White House’s original order halted the admission of all refugees for 120 days and halted travel from seven majority-Muslim countries — Iraq, Iran, Syria, Yemen, Sudan, Libya, and Somalia — for 90 days to give the federal government time to review admission procedures. The president’s legal authority for the order — under Section 212(f) of the Immigration and Naturalization Act, the president has the power to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” — was difficult to dispute. However, a chaotic rollout that ensnared legal permanent residents and Iraqi allies of U.S. military forces in the ban gave district judge James Robart and the Ninth Circuit cover for tenuously argued injunctions.

The revised order, signed on March 6, left key elements of the original ban in place, including a 120-day suspension of the U.S. Refugee Admissions Program and an annual refugee cap of 50,000, but removed Iraq from the list of countries with travel suspensions, lifted the indefinite halt on Syrian refugees, and supplied a clear list of exceptions to the ban. The order was also rolled out in a press conference held by key Cabinet officials, and a ten-day delay was built in to give the appropriate agencies time to coordinate before the order took effect.

In addition to all of this, the order included detailed justifications for the temporary travel bans on the six remaining countries, cited the sources of the president’s legal authority for the order, and explained why the order was not a ban on Muslims.

But instead of ruling on the Trump administration’s revised policy, Judge Watson has ruled on the character of Donald Trump. Watson’s ruling finds “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order.” The evidence cited includes some of President Trump’s campaign statements, as well as Rudy Giuliani’s much-publicized comments, after the first executive order was signed, that Trump wanted a legal “Muslim ban.” Conveniently, the court neglects the portion of Giuliani’s comments in which he explained that the commission set up to draft the ban focused on, “instead of religion, danger,” which helped to determine which countries the ban would target. (Federal judge Leonie Brinkema, whose injunction on the original order in Virginia Watson heavily relies on, also quoted Giuliani — and also left out that crucial bit.) While Judge Watson writes that “the Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decisionmakers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts,’” that is, in fact, exactly what he does.

In fact, so content is Judge Watson with his searching of Donald Trump’s heart that he does not bother to weigh in on the president’s claim to legal authority. He simply concludes that the revised ban is no different from the original, and that President Trump is lying about any substantive distinctions.

Judge Watson, much like the Ninth Circuit, has conjured up a new standard of legal analysis, one in which the text of a policy is irrelevant; all that matters is the apparent motive behind it. Needless to say, this not only leads to absurd outcomes — by Judge Watson’s rationale, Donald Trump’s campaign statements proscribe his ever crafting immigration policy that affects Muslim countries — but to alarming ones, not the least of which is the effective omnipotence of the judiciary.

There’s been a great deal of garment-rending about the supposed lawlessness of the Trump administration’s executive orders on immigration. So far, though, the only threats to the rule of law have come from the courts.


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