On Wednesday, a Federal Judge for Hawaii issued a nationwide restraining order on President Trump’s newly revised travel ban mere hours before it was to go into effect (how convenient).
One would be lead to believe that this judge had to have had some excellent reason to issue the restraining order. Perhaps he found a contingent within the travel ban that no one knew about or paid attention to. Or, perhaps, the judge was simply virtue signaling and committing the egregious act of judicial activism.
Sadly, it was the latter.
So what exactly was this judge’s reasoning and how far does it reach into the realm of judicial overreach?
The first case made by the judge for striking down the new Executive Order was that it hurt Hawaii’s economy… Yeah.
Judge Derrick Watson states that “Hawaii asserts two proprietary injuries stemming from the Executive Order.” Those injuries include, “financial and intangible” injuries on the Hawaii University system as the universities “recruit students, permanent faculty, and visiting faculty from the targeted countries.” And “the State’s main economic driver: tourism.” Judge Watson proclaims that the state’s economic assertions are valid and, even though it is of smaller focus, likely used the argument of economic damage in his final ruling, though it is not explicitly stated.
If, by chance, economic worries of the state were used in declaring the new Executive Order unconstitutional, allow me to say that such reasoning is asinine. American citizens from all walks of life clearly do not want a state or its people to suffer economically, but the fact of the matter is that just because a state DOES suffer economic hardship due to a policy does not make that policy unconstitutional. There was no reason for the state’s economic woes to be processed in this case, as it is irrelevant to the assertion of unconstitutionality. If such an argument was indeed a factor of Judge Watson’s decision making, then it is safe to say that his decision-making abilities are compromised.
The second and most influential reason for Watson’s ruling was the Order’s apparent context. Judge Watson clearly states that, in writing, the Executive Order “does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.” Regardless of this undeniable fact, Judge Watson then delves into the “context” of the Executive Order.
In his examples of context, Watson cites various instances of apparent Trump Islamophobia/religious targeting, from his initial campaign rhetoric of “I think
Islam hates us,” to Stephen Miller saying that the new Executive Order would have the “same basic policy outcome for the country.”
In analyzing the context of the order, Judge Watson states that “A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”
Now, let’s tear this ‘logic’ apart.
To state, as a judge of the United States, that the text of an Executive Order or law does not matter due to the comments of those in an administration, committee or otherwise at any point in time would likely cause most, if not all, pieces of legislation to be declared unconstitutional.
Judicial Review, as established by previous court decisions, is meant to analyze the text of an Executive Order or law and determine its constitutionality as such. Judge Watson further cites a Supreme Court case in which it is stated that context matters, however, said decision does not mean one dismisses the text of an Executive Order or law entirely, and to do so is a mockery of the judicial system.
When Judge Watson speaks of context, he doesn’t seem to understand what ‘context’ to a policy actually is. Context to a policy is the rhetoric relating to that specific Order or Law. Donald Trump commenting on mainstream Islam’s general feelings as a religion (Whether you believe him to be correct or not) when the Executive Order never had anything to do with mainstream Islam is an incorrect use of any legal precedent that states context can be taken into consideration.
But let’s actually look at what this order DOES. Context should indeed be taken into consideration under certain circumstances (this is not one of them), but the primary focus of a ruling should not be context, but the actions said Order takes.
President Trump’s new Executive Order:
- Does not, and never did, ban all Muslims from entering the US.
- Bans Jews and Christians from said countries from entering the country as well.
- No longer practices religious favoritism amongst refugees being admitted.
- No longer affects current visa/green card holders
No, what the travel ban does is it puts a temporary travel and refugee ban on six countries with a high concentration of Islamic extremists so that the State Department may re-assess our vetting procedure for said countries. Why do you think Iraq was taken off of the list of banned countries? A primary reason, according to Secretary Tillerson, was that they agreed to assist in making vetting Iraqi citizens coming to the US easier. Would an Islamophobe take a predominantly Islamic country off of a temporary ban list for any reason? Likely not.
The Executive Order does not violate the Establishment Clause, as Judge Watson attests, because it is, as he said, textually neutral. Religious opinions of Donald Trump during a campaign do not make the argument of context valid, and Stephen Miller saying the Executive Order would have the same basic policy outcome do not make it so either, since the Executive Order was never about singling out and persecuting a religion, but was instead about improving the vetting system.
Judge Watson’s ruling was extremely careless, crass, politically motivated and just another sign of how Judicial Supremacy is destroying our democratic system.