President Trump and the lower federal courts are playing a dangerous game of ping-pong, and the nation’s security is paying for it. The president, who is responsible for the nation’s safety, proposes and certain federal judges, who have no such responsibility dispose. The president proposes again, and again a judge or two dispose.
U.S. District Judge Derrick Watson in Honolulu issued a temporary order, effective for the 50 states, blocking President Trump’s ban on immigration from terror-exporting nations in the Middle East. He ruled that a law suit, brought by the State of Hawaii and a leader of the Muslim community in Hawaii, is likely to succeed in making the ruling permanent.
Judge Merrick said Mr. Trump’s orders would, among other things, harm Hawaii’s tourism industry. This effectively weighs the nation’s security interests against the interests of a hot-dog vendor on the beach at Waikiki, and finds for the hot dog. Judge Merrick was appointed to the bench by President Obama.
Mr. Trump promised a swift further appeal, as he must. “We’re going to take our case as far as it needs to go,” he says, “including all the way to the Supreme Court. The danger is clear. The law is clear. The need for my executive order is clear.”
This is merely common sense to most people, but the law, as Dickens famously observed, “is a ass,” and we observe that sometimes a judge insists on being one, too.
Mr. Trump’s first order halting travelers from the terror-exporting nations until “extreme vetting” could be established was blocked by a federal judge in Seattle (there may be something in the water of the Pacific that befuddles judges), and the president revised his order, to drop Iraq from the Obama list of suspicious nations, and changed the language to assuage judicial concerns. This did not satisfy Judge Watson.
Judge Watson insists that a “reasonable, objective observer” would regard the president’s new order as “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.” A federal judge in Maryland, ruling for the plaintiffs in a similar law suit a day or so later, agreed that the likely reason for the new presidential order was “the effectuation of the proposed Muslim ban” that the president had promised during the campaign.
Judge Watson even cited remarks by a Trump “adviser” and Rudy Giuliani, the former mayor of New York City and a campaign supporter of Mr. Trump, favoring a ban on Muslim immigrants. Neither the adviser nor Mr. Giuliani was a party to the litigation and neither was called as a witness. Nevertheless, Judge Watson said “these plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the executive order … betray the executive order’s stated secular purpose.”
The federal courts have always deferred to the judgment of the president, whomever he was, in matters of national security, on the reasonable grounds that a judge in Honolulu, or Seattle, or somewhere else, might not know what he’s talking about. Judge Watson was clearly attempting to make law to apply to something of which he is ignorant.
In Judge Watson’s understanding of the Constitution and the law, one of the several states might reasonably assert standing to sue the U.S. government over a declaration of war, or whether and how conscription might harm its economy, its tax base or its tourist industry.
The judges clamoring to get into the debate, and examining Mr. Trump’s past statements, and statements made by others, let slip their partisan intent. The president takes an oath to protect the nation from its enemies, foreign and domestic. A crucial way of doing that is to protect the border, even if he has to prevent the entry of a prospective immigrant — whether Muslim, Methodist or Mormon — from one of the nations known to export terror. The president must move quickly.
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