With his palpable tone of moral sneering and intellectual superiority in placing a temporary nation-wide stay on President Trump’s second immigration executive order, Hawaii federal district judge Derrick Watson has ratcheted up judicial activism beyond even what other federal judges had done against the first executive order. Last week, Watson found that the second order was directed against Muslims as Muslims and therefore violated the Establishment Clause.
Trump’s second executive order imposes “a temporary pause” on entry into this country from the six Middle East countries of Iran, Libya, Somalia, Sudan, Syria, and Yemen. A provision of the second order, unlike the first, allows exceptions and waivers on a case-by-case basis.
President Trump’s “real” intentions
The “primary purpose” of the second executive order, Judge Watson concludes, is directed against Muslims and “was issued with a purpose to disfavor” the Muslim religion. This is despite the actual words of the executive order which does not mention the word “Muslim” or even the word “religion” (except in a short introductory passage refuting the notion that the prior executive order had an “animus” against religion). The plaintiffs (see below) had complained that the government had “established a disfavored religion,” thus giving a new, negative meaning to the word “establishment.”
In his decision, the judge cites a December 2015 press release by the Trump campaign in which it was stated that “Donald Trump is calling for a total and complete shutdown of Muslims entering the United States,” and as well as Trump’s own words three months later that “I think that Islam hates us.” But then, inexplicably, the judge goes on to criticize a statement by Trump later in 2016 in which he specifically said that he had changed his words and was now talking about “territory instead of Muslim.” Judge Watson does not cite any similar Trump statements in connection with the actual issuance of the executive order or at any time as president. Apparently there are none, or Judge Watson would have found them.
As an additional statement of Trump’s “animus” against Muslims, Judge Watson then quotes a recent (but undated) statement by former campaign advisor Rudy Giuliani – who is not a presidential advisor or otherwise employed by the Trump administration – but who, Judge Watson concludes, is “the link” between Trump’s prior statements and the 2017 executive order. Thus, by citing the supposed role of Giuliani in this case, Judge Watson has elevated the hearsay of a third party — which would not be inadmissible in a trial — to the level of evidence and, indeed, of definitive proof of the real motivation of the president of the United States.
Judge Watson’s conclusion that the executive order did not have “a primary secular purpose” is based on the language of the Supreme Court’s decision in Lemon v. Kurtzman (1971) overturning a state law that allowed public funds for teachers at religiously-affiliated schools. There are three very large, and even unique, problems here. The first is that Judge Watson says almost nothing about First Amendment jurisprudence and cites only two cases, one of which is Lemon. So, what we have here is a sweeping constitutional ruling directed against the president of the United States with almost no discussion of the Constitution. The second problem concerns the fact that Establishment Clause jurisprudence is exclusively about whether government may directly or indirectly aid religion. There is no Supreme Court case about an act of government that disestablishes a religion. Third, there is nothing in American history that matches this. One can think only of the anti-Catholicism in colonial America where Catholics suffered real penalties by law. But that was almost gone by the time of the ratification of the First Amendment.
Real law and real judicial procedure
With his fixation on uncovering President Trump’s putative intentions, Judge Watson basically ignores the legal and constitutional basis and context for the executive order. Immigration is an area of the law over which the Congress by statute has given the president a great deal of unusual discretion. Besides the Establishment Clause, the suit was brought in part under a section of the Immigration and National Act, 8 U.S.C. 1182(f), which explicitly gives the president the authority to “suspend” by means of “proclamation” the entry into the United States of “any class of aliens” that he finds “would be detrimental to the United States.” That is, the threat need only be “detrimental;” it does not have to be violent or terrorist. In his 43-gage decision, Judge Watson does not mention this language. So, what we have here is an act by the judiciary against both of the other two branches of government.
Unlike the acts and decisions of executive agencies which are governed by the Administrative Procedures Act, 5 U.S.C. 551, the constitutional status of executive orders is somewhat amorphous. Article II of the Constitution does not mention executive orders, and there are few Supreme Court cases on the subject. The basic case is still Youngstown (1952) in which the Supreme Court ruled that President Truman’s attempt to take over the steel mills was unconstitutional because the president is not “a lawmaker.” Justice Jackson’s concurrence in Youngstown has come to be recognized as the standard judicial interpretation of presidential executive orders. In that concurrence, he stated that the president has the “widest latitude” when his actions are based on acts of Congress. Thus, ironically, we can see that President Trump’s second executive order should have been upheld by Judge Watson based on precedent that originated in a case in which the Supreme Court overturned a presidential executive order
The “plain meaning rule” is the fundamental and most important canon that guides judicial interpretation of statutes and texts like executive orders. Words are to be given their ordinary meaning in the context where they occur. If there is some ambiguity, courts may look to additional sources such as legislative history and, sometimes, statements of intent by those involved in the drafting of a statute. As the late Justice Antonin Scalia said in his book Reading Law, co-authored with Bryan A. Garner, “the words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.” But in his decision, Judge Watson used additional sources, the statements of President Trump and Rudy Giuliani, not to interpret but to completely negate the meaning of the words.
Logic or illogic?
By the normal standards of judicial decision-making, Judge Watson himself states why he should have dismissed the plaintiffs’ suit against the executive order. “It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”
However, the plain meaning of words does not deter him. The government had argued that no discrimination against Muslims is present or intended in the executive order because the order concerns only six countries, not the several dozen countries in which Islam is predominant. In words that have been gleefully reported in almost every write-up of this case, Judge Watson purports to refute the government’s argument by concluding that “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.”
Calling the government’s position “fundamentally flawed” without saying why it is flawed is basically a kind of ad hominem attack. But let’s also check logic versus “illogic.” If human-rights advocates urge people to avoid buying grapes picked by underpaid workers, does that mean they are opposed to all grapes? If a person disagrees with the views of a certain Christian church, does that mean that he is opposed to all Christian churches? And when the airlines banned certain Samsung cellphones because of their unfortunate tendency to catch fire, they did not ban all cellphones. So, whose illogic is palpable here?
The alleged injuries
A plaintiff in a federal lawsuit must have standing to sue. Article III of the Constitution confines federal lawsuits to actual “cases or controversies.” The controversy must involve the probability of a personal injury, an “injury in fact.” No one may sue on behalf of the citizenry at large. Generalized grievances are not allowed. In every case, a ruling on standing is the first order of business for the court.
The plaintiffs in this case complain that they must live in a country where the government has not only “established a disfavored religion” but also one that “stigmatiz[es]” Muslims immigrants, refugees, and citizens. The first plaintiff, a Dr. Elshikh, an American citizen of Egyptian descent, is suing on behalf of his Syrian mother-in-law whose visa application to enter the United States is pending. Dr. Elshikh is “deeply saddened” by Trump’s “devastating” executive order, and his children are “hurt, confused, and sad.” In allowing Elshikh to sue, Judge Watson seems to be creating a new kind of standing, based on emotion and familial relations, even though the executive order does not affect him personally in any way. And since the visa application of Elshikh mother-in-law is still pending, any injury to her is speculative at this stage of the case. The other plaintiff is the state of Hawaii which sued on behalf of the University of Hawaii. The state says that the university will be harmed because it recruits students and faculty from the six affected countries. The university asserts monetary injuries in that it will lose the tuitions of students coming from the six countries. The state chimes in with its claim of monetary loss in that it will lose income from tourists from the six countries.
Another aspect of standing is ripeness. It must be the right time to resolve a lawsuit. In this case, since the mother-in-law’s visa has not been denied and since the University of Hawaii has not lost any students or faculty nor Hawaii any tourism their claims are not ripe. One might also suggest to the state and university of Hawaii that they should first seek students and tourists from the other 184 countries in the world before suing to assert their own picayune interests over a decision by the president of the United States about terrorism in the Age of Terrorism.
Judge Watson goes as far as to endorse the plaintiffs’ contention “that the national security reasons for the Executive Order are pretextual.” Thus, he asserts that a presidential executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” is a just a subterfuge to discriminate against Muslims. What is more, a court knows better than the president what national security threats there are against the United States.
What we have in Judge Derrick Watson’s decision is the judicial version of a combination of an anti-Trump op-ed piece and anti-Trump street activism. Judge Watson has divined what, he says, President Trump’s real motivations were. Do we, the public, have a right to know what Judge Watson’s real motivations are?
Thomas Ascik is an attorney.