On Wednesday evening, a federal judge in Hawaii issued one of the most inane and insane judicial rulings in recent memory, placing a national temporary restraining order on President Trump’s revised executive order concerning refugees and immigration from terror-rich countries. The decision is a clear usurpation of legislative function by the judiciary and a clear overwriting of power delegated to the president by the Constitution and relevant legislation. What’s worse, the logic essentially allows any state to destroy the president’s power as commander-in-chief.
Here are the three worst elements of the judicial decision.
1. The Court Says That The Constitution Bars Religious Discrimination Against Foreigners. This is just asinine. The Constitution does not apply to foreigners. And in fact American immigration policy has differentiated based on culture and religion in the past. The idea that our immigration policy under the Constitution must grant rights to people to immigrate is simply ridiculous. That would mean we could never have an immigration policy that discriminates at all. Which means open borders for everyone, or closed borders for everyone. That’s nuts.
2. The Court Says Motivation Matters, Not Text. The court makes the nutty ruling that Trump’s executive order, which clearly is not a Muslim ban, is actually a Muslim ban. Why? Because Trump said during the campaign that he thinks “Islam hates us,” and said about his first travel ban that it was directed toward radical Islam. Never mind that the new travel ban has no religious language in it whatsoever, that the countries named in the ban were originally named by the Obama administration, and that the court openly acknowledges that the executive order is facially neutral. Nope. They say that Trump said mean things about Muslims, so we can interpret the executive order as an extension of his feelings. Obviously, courts don’t apply this rule consistently – Obama said repeatedly that the mandate in Obamacare was not a tax, it was a fee, but the court rewrote the statute to protect it. But here’s the biggest problem with this argument: if an executive action can be challenged based on motivation, can states sue to prevent wars because Trump has said that “Islam hates us”? What if Trump decides on a military strike in Yemen? That’s a Muslim country. And Trump has said bad things about Islam. So why wouldn’t the establishment clause bar him from such discrimination?
3. The Court Grants Standing Based On Hurt Feelings. The guy who sued in this case was a Muslim American named Dr. Ismail Elshikh. He’s an American citizen of Egyptian descent. The executive order doesn’t apply to American citizens or to Egypt. So how does he have standing? He doesn’t. But the court found that he does, because his mother-in-law lives in Syria. The court said he has standing because he declares that the executive order is “devastating to me, my wife and children,” since it “sadden[s]” him. That’s one hell of a legal standard. Most government action is devastating to someone. Does that give them standing to sue? What absolute idiocy.
There’s no question that this judicial decision is a farce. It should motivate Congress to restrict the jurisdiction of federal courts or break up the Ninth Circuit – actions Congress should have taken long ago. This is rule by fiat, and it is not contemplated in any way by the Constitution.