Hawaii Judge's Flawed Aloha Akhbar Logic
The latest indication of the need to drain the judicial swamp comes in the form of Hawaii Judge Derrick Watson’s ruling placing a hold on President Trump’s second executive order placing a temporary immigration ban on six predominantly Muslim countries. It is, as President Trump noted, a classic case of "judicial overreach."
Judge Watson’s logic belongs in a parallel judicial universe where judges are allowed to regulate foreign policy, clearly a presidential prerogative defined in both law and the U.S. Constitution. Judge Watson cites no law and, in the case of the Constitution, says the travel ban violates the Establishment Clause which forbids favoring or disparaging a particular religion. By that logic, you could never restrict any immigration from any Muslim country for any reason. Judge Watson strays outside the four corners of the executive order and ignores explicit U.S. law to cite President Trump’s campaign statements, which are totally irrelevant. Motive, even if correctly discerned, is irrelevant here. Only the law and presidential authority should apply. As the Washington Post describes Judge Watson’s flawed logic:
In a blistering 43-page opinion, U.S. District Judge Derrick K. Watson pointed to Trump’s own comments and those of his close advisers as evidence that his order was meant to discriminate against Muslims and declared there was a “strong likelihood of success” that those suing would prove the directive violated the Constitution.
Watson declared that “a reasonable, objective observer -- enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance -- would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.”
Judge Watson even cited statements by former New York Mayor Rudy Giuliani to buttress his assertion of a religious animus toward Muslims. Watson favorably cited the plaintiff’s citation of President Trump’s words regarding Muslim persecution of Christians in the Middle East. As CNN reported Trump’s remarks:
President Donald Trump said in a new interview Friday that persecuted Christians will be given priority over other refugees seeking to enter the United States, saying they have been "horribly treated."
Speaking with the Christian Broadcasting Network, Trump said that it had been "impossible, or at least very tough" for Syrian Christians to enter the United States.
"If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair -- everybody was persecuted, in all fairness -- but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them."
And just what is unconstitutional about helping victims of religious persecution? If we had given preference to German Jews before the Holocaust, would that have been unconstitutional? We in fact gave preference to Russian Jews fleeing the Soviet Union during the Cold War. Was that unconstitutional? It is amazing that Judge Watson seems blissfully unaware of the ongoing persecution of Christians in predominantly Muslim countries or the Obama administration’s curious selectivity in admitting refugees. As Fox News reported:
The Obama administration hit its goal this week of admitting 10,000 Syrian refugees -- yet only a fraction of a percent are Christians, stoking criticism that officials are not doing enough to address their plight in the Middle East.
Of the 10,801 refugees accepted in fiscal 2016 from the war-torn country, 56 are Christians, or .5 percent.
A total of 10,722 were Muslims, and 17 were Yazidis.
The numbers are disproportionate to the Christian population in Syria, estimated last year by the U.S. government to make up roughly 10 percent of the population. Since the outbreak of civil war in 2011, it is estimated that between 500,000 and 1 million Christians have fled the country, while many have been targeted and slaughtered by the Islamic State…
Disparate impact, anyone? Discrimination? Gross injustice? Where were the lawsuits? Where were the judicial rulings saying that President Obama was favoring one religion over another? Where was Judge Watson and his liberal brethren? As Rush Limbaugh noted on his show, President Trump’s travel ban is lawful under 8 U.S Code 1182, and there is ample historical precedent for employing its bestowed authority to ban any class of aliens at any time, for any reason if the President deems the national security of the United States requires it:
Here is number eight US Code 1182, inadmissible aliens. This law was written in 1952. It was passed by a Democrat-controlled Congress, House and Senate, and signed by a Democrat president.
“Suspension of entry or imposition of restrictions by president. Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, the president may, by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Over here, everybody in the establishment in the political class, Republican, Democrat, media, you name it, is all claiming that what Trump said is dumb, stupid, reckless, dangerous, unconstitutional, while it is the law of the land. And it was utilized by Jimmy Carter, no less, in 1979 to keep Iranians out of the United States…
In November the 1979 United States attorney general had given all Iranian students one month to report to the local immigration office. Seven thousand were found in violation of their visas, 15,000 Iranians were forced to leave the United States, 1979.
As for the application by Judge Watson of the Establishment Clause to Trump’s travel ban, this is from some Alice In Wonderland law book. If travel ban violates the Establishment Clause, why hasn’t 8 U.S. Code 1182 been struck down by Judge Watson or any other liberal judge? Oklahoma Attorney Robert Barnes, interviewed on Sirius XM radio, says Judge Watson is clearly wrong in extending the Establish Clause to non-citizen foreigners:
“His basis for doing so was an extraordinary interpretation of the right to travel and the freedom of association, which before, has only been associated with U.S. citizens,” Barnes continued. “Every court decision in the 200 years prior to this has said that people who are not citizens of the United States, who are not present within the United States, have no First Amendment constitutional rights. The Constitution doesn’t extend internationally to anybody, anywhere, anyplace, at any time…
“The Hawaii judge’s decision says he has a First Amendment constitutional right to do so because he’s Muslim. It was one of the most extraordinary interpretations of the Establishment Clause of the First Amendment ever given, which is that because these are Muslim countries that were banned where the issue of terror arises from that that meant they had a special right to access the country and visit the country,” he said.
“As long as there is somebody here that wants them here, no president can ever preclude them from coming here. He basically gave First Amendment rights to everybody around the world and gave special preferences to people who are Muslim under his interpretation of the First Amendment,” Barnes summarized.
“So it’s an extraordinarily broad order. Its legal doctrine has no limits. If you keep extending this, it means people from around the world have a special right to access the United States, visit the United States, emigrate to the United States, get visas to the United States...
And who is this Imam who prompted Judge Watson’s order by asserting he had been harmed by President Trump’s travel ban? Conservative Review described the man behind the lawsuit:
Dr. Ismail Elshikh -- the imam of the Muslim Association of Hawaii -- is suing Trump in reaction to the second version of his immigration moratorium, which was signed on Monday. The order imposed a 90-day hold on foreign nationals from six terror-tied countries from entering the United States. According to the Muslim Association of Hawaii website, Imam Elshikh is a member of the North American Imam Federation (NAIF), a fringe Islamic organization that has a board and current leadership stacked with radical Islamic connections. Kyle Shideler, a terrorism expert and director of the Threat Information Office at the Center for Security Policy, tells CR that it’s concerning that Imam Elshikh is a part of NAIF. “Given NAIF's history it should come as no surprise that the end goal of this lawsuit is, ultimately, weakening American counter-terrorism or immigration security efforts,” Shideler said. He added: "That a member of an organization whose leaders have included a convicted war criminal, an individual who defended donating money to a Hamas linked charity, and an unindicted co-conspirator in a terrorism bombing wants to tell the American people who they can admit for immigration should say a lot about why such an executive order is needed in the first place."
The fact is that the Constitution, which gives the president exclusive power to conduct foreign policy, does not extend infinitely to every non-citizen on this planet who may have some connection to someone here. The law clearly gives the president the legal authority to ban entry to any noncitizen who he determines may be a threat to the national security of the United States.
Judge Watson has not interpreted this or any other law. He has written law, very bad law, and has become the poster child for the need to drain the judicial swamp.
Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.