Another Dangerous Travel-Ban Ruling

National Review March 16, 2017 (excerpts)

We thought it well-nigh impossible to outdo the Ninth Circuit Court of Appeals for foolish, dangerous legal reasoning, but Honolulu district judge Derrick Watson has managed it….

In February, addressing itself to the White House’s original order, the notoriously liberal Ninth Circuit upheld a Seattle-area judge’s nationwide injunction on the previously unknown legal ground that immigration policy is under the purview of the judiciary. As we wrote at the time, the Ninth Circuit’s ruling was so broad as to effectively abrogate the separation-of-powers doctrine in national-security policymaking. According to the court, the president and Congress — the branches constitutionally accorded power over national-security policy — may take no actions to protect the country without the express permission of the judiciary. This would have come as a surprise to the designers of the 1965 Immigration & Naturalization Act, let alone to the Framers….

…instead of ruling on the Trump administration’s revised policy, Judge Watson has ruled on the character of Donald Trump. Watson’s ruling finds “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order.” The evidence cited includes some of President Trump’s campaign statements, as well as Rudy Giuliani’s much-publicized comments, after the first executive order was signed, that Trump wanted a legal “Muslim ban.” Conveniently, the court neglects the portion of Giuliani’s comments in which he explained that the commission set up to draft the ban focused on, “instead of religion, danger,” which helped to determine which countries the ban would target. (Federal judge Leonie Brinkema, whose injunction on the original order in Virginia Watson heavily relies on, also quoted Giuliani — and also left out that crucial bit.) While Judge Watson writes that “the Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decisionmakers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts,’” that is, in fact, exactly what he does.

In fact, so content is Judge Watson with his searching of Donald Trump’s heart that he does not bother to weigh in on the president’s claim to legal authority. He simply concludes that the revised ban is no different from the original, and that President Trump is lying about any substantive distinctions.

Judge Watson, much like the Ninth Circuit, has conjured up a new standard of legal analysis, one in which the text of a policy is irrelevant; all that matters is the apparent motive behind it. Needless to say, this not only leads to absurd outcomes — by Judge Watson’s rationale, Donald Trump’s campaign statements proscribe his ever crafting immigration policy that affects Muslim countries — but to alarming ones, not the least of which is the effective omnipotence of the judiciary.

There’s been a great deal of garment-rending about the supposed lawlessness of the Trump administration’s executive orders on immigration. So far, though, the only threats to the rule of law have come from the courts.

read … Dangerous

NR: If any local judge can combine dovish standing rules and an ill-defined animus standard and come up with a national injunction, then Congress will no longer be the master of the truly national issues

NR: To protect the feelings of some residents, a court unconstitutionally strips power from Congress and the president.

DOJ: Hawaii ruling 'flawed both in reasoning and in scope'

WE: "The Department of Justice strongly disagrees with the federal district court's ruling, which is flawed both in reasoning and in scope," DOJ spokesperson Sarah Isgur Flores said in a statement released late Wednesday. "The President's Executive Order falls squarely within his lawful authority in seeking to protect our Nation's security, and the Department will continue to defend this Executive Order in the courts."

read … Hawaii ruling 'flawed both in reasoning and in scope'

Dershowitz: Hawaii Trump Ruling will be Overturned on Appeal

TG: …The distinguished law professor Alan Dershowitz was quick to take to the airwaves to analyze Watson’s decision and to venture predictions about its ultimate fate. Just as he had done in February, when he discussed the judicial order about the president’s first travel ban, Dershowitz pointed to the president’s broad powers in the area of immigration and confidently predicted that Judge Watson’s decision would be overturned on appeal, if not by the ninth circuit court of appeals, then by the supreme court.

Dershowitz may be right about the ultimate fate of the latest judicial imposition of restraint….

read … Overturned

Al Jazeera: Hawaii argued that the new order will harm its Muslim population  (And anything that is bad for Muslims must therefore be illegal.  Upholding Islam is the highest law of the land.)