March 17, 2017
by Warren L. Nelson
A US district court judge in Hawaii has quoted Donald Trump’s own words back to him and ruled that his second visa ban violates the Constitution by discriminating against Muslims. The judge prevented the new visa ban from going into effect last Thursday as Trump wished.
Trump was furious and literally screamed his response, much of which was an attack on the judge and the judiciary—a screed that certainly can’t help Trump as he appeals the decision of the Hawaii judge.
In Honolulu, Judge Derrick Watson was uncompromising. “The Executive Order was issued with a purpose to disfavor a particulate religion [Islam], in spite of its stated, religiously neutral purpose.”
The judge said the law requires that the Executive Order “must have a primarily secular purpose”—but does not.
He noted that the govern-ment’s lawyers argued that the Trump ban “could not have been religiously motivated because ‘the six countries [covered by it, including Iran] represent Ö less than 9% of the global Muslim population’.”
The judge responded: “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward one group of people only by targeting all of them at once is fundamentally flawed…. It is a discriminatory purpose that matters.”
The judge then went on page-after-page quoting Trump and his aides to demonstrate anti-Muslim bias on the part of the president. “The record … includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order,” Judge Watson wrote.
He cited an interview one year ago in which Trump said of the Islamic world, “There’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States … and of people that are not Muslim.”
The judge quoted from a campaign press release of December 2015 that began: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
He cited an interview one month after Trump’s inauguration with former New York Mayor Rudy Giuliani who said, “When [Trump] first announced it, he said, ‘Muslim ban.’ He called me up [after his inauguration]. He said, ‘Put a commission together. Show me the right way to do it legally’.”
The judge said, “These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.”
Judge Watson noted that President Trump said the ban was required for national security purposes and that was why the first ban in January had to be issued with no advance notice, so terrorists couldn’t rush in before the ban took effect. But the revised order had a built-in 10-day delay, “which detracts from the national security urgency claimed by the Administration,” Judge Watson wrote in his decision impaling the logic behind the Executive Order.
In a speech in Nashville, Tennessee, a few hours after the judge ruled Wednesday, Trump labeled the decision a “flawed ruling” and called it “unprecedented judicial overreach” that he suggested was politically motivated.
“We’re going to fight this terrible ruling. We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court,” he said. “We’re going to win. We’re going to keep our citizens safe, and, regardless, we’re going to keep our citizens safe. Believe me.”
Trump and others in his administration defended the earlier order by arguing that US immigration law grants the president broad authority to decide who may or may not enter the country. As he has in the past, Trump read a section of a 1952 law that states that in any instance where the president thinks 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, he may … suspend the entry of all aliens or any class of aliens as … he may deem to be appropriate.”
Trump argued that the law is so simple it would be “easy” to understand, “even if you’re a bad student.”
Trump did not, however, quote a later law saying immigration rules must not discriminate based on religion or nationality.
Trump went on to suggest that the judge in Hawaii halted the order for political reasons rather than on legal grounds. His voice dripping with sarcasm. Trump said, “You don’t think this was done by a judge for political reasons, do you?”
The issue before the judge in Hawaii was a request by the Hawaii attorney general to issue a “temporary restraining order” (TRO) barring enforcement of the Trump order until there can be a full trial on the merits of the issue. To win a TRO, a plaintiff must establish that the chances of winning on the merits are very high. Judge Watson was saying the chances are very high.
But the underlying case must still go to trial.
In the meantime, the immigration rules in effect when Trump became president remain in effect, and, if Trump is to be believed, terrorists are now “streaming” into the US.