In another blow to President Trump’s attempts to quash travel from terror-rich countries until better vetting procedures can be implemented, a federal judge in Hawaii put a nationwide hold on Trump’s immigration and refugee executive order. Again.
The ruling is yet another incident of judicial overreach. The executive branch has clear powers in the area of immigration restriction and refugee admittance. There could have been arguments that the original travel ban as constructed violated the mandates of Section 1152(a) of Title 8 of the U.S. Code, which says “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The counterargument was that Section 1182(f) grants the president the ability to suspend the entry of “all aliens or any class of aliens as immigrants or nonimmigrants” so long as the president declares them “detrimental to the interests of the United States.”
But the revised travel ban simply doesn’t run into these issues. It removes language favoring refugees of certain religions, it doesn’t apply to current green card holders, and the president clearly has the capacity to suspend visas from terror-rich countries (that’s been done repeatedly, including by Jimmy Carter in 1980).
So, what was the court’s problem this time?
First, the judge argued that the new executive order discriminated on the basis of religion, even though the executive order clearly does not do so – in fact, the revised executive order was designed not to do so. To dispute that claim, the court relies on out-of-court statements by Trump adviser Stephen Miller, who said on February 21, “Fundamentally, you’re still going to have the same basic policy outcome for the country.” Here’s the court:
Because a reasonable, objective observer … would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.
But what about the fact – undisputed, as the court recognizes – that the text doesn’t talk about religion? What about the fact that the supposed discriminatory ban doesn’t target the vast majority of Muslims the world over? The court says, “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.” Say what? So any policy that disproportionately affects Muslims, even though it is facially neutral, is now discriminatory according to the court. How does the court know that the executive order is directed against Islam? They quote Trump from March 2016 stating, “I think Islam hates us.” They quote Trump’s infamous Muslim ban press release from 2015.
They say that Trump’s purposes aren’t veiled. The court says that perhaps sometime in the future, Trump will have talked nicely enough about Islam that the ban could become permissible. But not now. They quote the Tenth Circuit on this issue:
But from the above principles we conclude that a government cure should be (1) purposeful, (2) public, and (3) at least as persuasive as the initial endorsement of religion. It should be purposeful enough for an objective observer to know, unequivocally, that the government does not endorse religion. It should be public enough so that people need not burrow into a difficult-to-access legislative record for evidence to assure themselves that the government is not endorsing a religious view.
So talk about the wonders of the muezzin call, President Trump. That might do it.
But if the new standard for legislation and executive orders is that we don’t look to the text but to the stuff said on television, wouldn’t Obamacare have been a fee rather than a tax, and therefore have been struck down by the Supreme Court?
The judge also backed up the earlier court’s fully asinine claim that states can negate federal immigration policy by complaining that they won’t be able to recruit students or maintain levels of tourism: “the State has preliminarily demonstrated that: (1) its universities will suffer monetary damages and intangible harms; (2) the State’s economy is likely to suffer a loss of revenue due to a decline in tourism.” These give the state standing, supposedly.
The judge also gives the main plaintiff, an American Muslim of Egyptian descent – a guy who won’t be deported, isn’t at risk of deportation, and clearly has no standing – standing, because he might feel “hurt, confused, and sad” due to purported discrimination. Yes, really.
The decision itself is ridiculous. There is no right to enter the United States from abroad for non-citizens; there is no right to be free from religious discrimination in immigration policy for people who are not citizens. Beyond that, this executive order doesn’t actually discriminate against Muslims and doesn’t bar green card holders.
But that’s not enough. Essentially, the court determined that Trump has to talk purty about Islam until they believe him – at which point, they might let him promulgate an executive order barring travel from terror-rich countries that happen to coincide with a Muslim population.