Ben Shapiro
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.
Ridiculous.
Ben Shapiro, The Daily Wire, Feb. 15, 2017
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