On, Wednesday March 15, 2017, Judge Derrick Watson, a Federal District Court Judge in the District of Hawaii, ordered that President Trump’s new Executive Order issued on March 6, 2017 be temporarily prevented from being implemented on a nationwide basis until a full evidentiary hearing takes place.
The Order is, in my opinion, erroneous on a number of fronts. I will address only a few problems with it.
1. Foreign Nationals Outside the United States Have No Right to Assert Their Constitutional Rights Have Been Violated.
As the Department of Justice noted in its brief “[t]he only persons subject to the Order are foreign nationals outside the United States with no visa or other authorization to enter this country. Order §3(a)-(b). The Supreme Court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon, 459 U.S. at 32; see Mandel, 408 U.S. at 762. Such aliens thus have no due-process rights regarding their potential entry. Angov v. Lynch, 788 F.3d 893, 898 (9th Cir. 2015) (as amended). DOJ Brief in Opposition, p. 48.
2. Lack of Standing
A party seeking to file suit in our Federal Court system must allege a concrete injury. Hawaii failed to do this in my opinion. Here is an example of one of the more ridiculous vague allegations of concrete injury that was accepted without question by Judge Watson. “The State points to preliminary data from the Hawaii Tourism Authority, which suggests that during the interval of time that the first Executive Order was in place, the number of visitors to Hawai‘i from the Middle East dropped (data including visitors from Iran, Iraq, Syria and Yemen).” Order, p. 19.
3. Improper Presumption That The Executive Order Was A Muslim Ban
The Executive Order spells out in detail that all of the six nations listed are hotbeds of terrorism. Executive Order, Section 1, paragraph e.
These statements in the Executive Order were not addressed by Judge Watson who instead chose to rely upon a draft report issued by the DHS.
Plaintiffs describe a draft report from the DHS, which they contend undermines the purported national security rationale for the Executive Order. The February 24, 2017 draft report states that citizenship is an “unlikely indicator” of terrorism threats against the United States and that very few individuals from the seven countries included in Executive Order No. 13,769 had carried out or attempted to carry out terrorism activities in the United States.” Order, p. 13.
As I previously pointed out, in much more detail than the Executive Order does, there is ample evidence for Iran to be on the list of suspect countries.
4. Improper Reliance Upon Campaign Statements
As the DOJ noted, [t]he Supreme Court has declined to rely even on press statements and other informal communications by incumbent government officials, recognizing that they may not accurately reflect the government’s position. See
Hamdan v. Rumsfeld, 548 U.S. 557, 623-24 & n.52 (2006); see also Professionals& Patients for Customized Care v. Shalala, 56 F.3d 592, 599 (5th Cir. 1995). Afortiori, statements by private persons cannot reveal “the government’s ostensible object.” McCreary, 545 U.S. at 859-60; see Modrovich v. Allegheny County, 385 F.3d 397, 411-12 (3d Cir. 2004) (declining to rely on position of nongovernment parties); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (10th Cir. 2008) (same); Glassman v. Arlington County, 628 F.3d 140, 147 (4th Cir. 2010) (same). Using comments by political candidates to question the stated purpose of later action is particularly problematic. Candidates are not government actors, and statements of what they might attempt to achieve if elected, which are often simplified and imprecise, are not “official act[s].”McCreary, 545 U.S. at 862.” DOJ Brief, pgs 43-44.
Judge Watson pointed to some vague statements made by President Trump over a year ago in his conclusion that the Executive Order was an impermissible violation of Freedom of Worship. Order, p. 33.
Overall, Judge Watson’s order reveals little to no deference for the President on national security issues. I am particularly dismayed by Judge Watson’s reliance upon campaign statements.
Both the judge’s Order and the Opposition are embedded below.
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The logical contortions Judge Watson makes are incompetent. His conclusion that Dr. Elshikh has demonstrated he has suffered irreparable harm and that injuries have already occurred reminds me of the elfs? in South Park that proclaim: “Step One, steal single socks. Step Three, profit! Step Two? We’re still working on that.”
The Maryland judge agreed with the Hawaii judge, neither of them incompetent. But then you get your law from South Park, which explains quite a bit.
To me, it is rather interesting that this “judge” issued a 43 page decision some 2 hours after the case was concluded based on pro-con argument. Me thinks this is the classic example of judge shopping and liberal judicial bias.
How does the evidence you cite support your conclusion? How might you “shop” for a judge? Aren’t they randomly assigned in the jurisdiction by a docket clerk?
Gets better, Now hearing that Barry secretly met with the judge in Hawaii the day before he signed the order on immigration. This was a judge that Barry appointed by the way..
On another note where is Barry’s family??
Todd Starnes has suggested that we send all the refugees to Hawaii… Works for me.. https://uploads.disquscdn.com/images/5b8d1825346b4028d511bd8baf0d2d51b6592c700f6046dec6efd3921b6d841f.gif
Obama sent refugees to small town conservative areas. Trump should send them to large town liberal areas like San Francisco.
IJR regrets the error in reporting Obama, Hawaii judge connection.
OK, now what??? So they’re ruling is wrong, what is the recourse? Sounds like you’re just preaching to the choir.
It looks like this mess will go to the Supreme Court after Gorsuch is escounced. In the meantime, Trump wins if any terrorist attacks occur in country because he can point to the judiciary as having created the ohstructionist conditions for more Islamic terrorism. The leftist obama judiciary now owns the tragedies to come and if they happen to,the wrong person, judge shopping will be for another reason – and that is unfortunate.
Most of which were approved by a Republican Senate. Your are partisan to a serious fault.
I don’t give the Republican Senate much credit. They simply caved to obama’s demands on far too many occasions. The words RINO and GOPe go quite accurately together and there were less than a half dozen republican senatorial conservatives – Paul, Cruz, Lee, Sessions and some others. It seems that the republican legislators operate out of fear of being called names – Trump showed that name calling really doesn’t matter if you actually bother to fight for conservative principle that will help,the American middle working class.
Got it: Leftist Obama judiciary approved by timid right-wing RINO senate that “fears being called names.”
Love your assertion that Trump is a conservative! You simply cannot make these contortions up! Righto! Trump is a conservative! Hahahahahaha.
When did a conservative see a trillion-dollar debt and propose trillions more in spending AND tax cuts? He’s a big spender, believes in big government, campaigns on promise after promise: Rebuild highways, bridges, airports, subways.
You wrote: “Love your assertion that Trump is a conservative! You simply cannot make these contortions up! Righto! Trump is a conservative! Hahahahahaha.”
I don’t see where he actually claimed that Trump is a conservative. What he really said is: “Trump showed that name calling really doesn’t matter if you actually
bother to fight for conservative principle that will help the American
middle working class.”
There is definitely a difference between being a conservative and fighting for conservative principles. The first is in your heart and soul; the second is in your words.
If I suddenly advocated for single-payer healthcare, I would be advocating for the democrats’ principles; but it doesn’t turn me into a liberal.
Trump seems to be neither a conservative nor a liberal. He sees everything from the point-of-view of business – does it help business grow or does it contract business? Depending upon the issue, he can appear to be very liberal. On other matters, he’s very conservative.
Astute observations. I agree with you.
You honestly believe the press, Democrats and spineless Republicans in Washington are going to allow a narrative of anything other than “the attack happened on Trump’s watch”?
Thanks for writing, much to consider and review.
Author’s previous article, linked above, cited the conviction of two Iranian nationals to 25-year terrorism sentences as evidence of the error by federal judge Robart in the stay of Trump’ s first ban.
Author was incorrect. One of two suspects, Mansour Arbabsiar, an American citizen, was arrested and pled guilty to conspiracy to commit murder of a Saudi national. The other suspect, well-known Iranian baddie Abdul Reza Shahlai (unlikely to appear on a refugee list any time soon), remains at large.
Did USCIS catch the family relationship before granting citizenship to Arbabsiar? Was cuz a known baddie when Arbabsiar was granted citizenship? Good question. Is his arrest and conviction indicative of adequate processes? Another good question. I only regret that spurious discussions of judicial error are keeping us away from these more pertinent questions.
Political obstructionism at the expense of the American citizenry. Trump needs to ignore this decision and do what obama did – the difference is Trump would be using his constitutional powers to do his duty while obama would have been ignoring his.
Trump can ignore the decision, but CBP and DHS do not have that option. The judiciary branch has a check for a reason. The decision is not surprising because Trump was foolishly, repeatedly revelatory of motive during the campaign and the essence of America is freedom of religion — it’s what drove us to form a nation.
The religious freedom argument makes absolutely no sense. The president has the authority to ban any non-citizens for any reason. What you are saying is equivalent to the USA having to let Nazi troops into the country if they claimed that nazism was a religion. This judicial carve out for religion, and now apparently nationality, is a judicial usurptation of executive power. Frankly, there is no travel ban order that Trump can sign that won’t be stopped by some radical leftist obama judge. The danger to the nation is obvious in such judicial tyranny.
Not for ANY reason. POTUS must follow the constitution in ALL he does — thus the oath — and further these rights extend to citizens, states inviting visitors, family members, etc. No wonder you miss the point — you actually believe there are circumstances where POTUS may violate our constitution. He must not. There are now two federal judges who ruled this way — Maryland’s request to stay the travel ban was approved yesterday.
Only to citizens and only to people in the country. They do not extend to non-citizens who are not in the country no matter what the connection. You are an open borders globalist.
Where is your evidence for you final sentence? And, again, you are wrong: POTUS must follow the constitution at all times in all decisions, and those inside the US have rights as regards visitors. That you would level unsubstantiated charges at me without a scintilla of evidence is ridiculous; That you would absurdly claim the oath of office to follow the constitution is irrelevant is indefensible and frankly un-American, marking you as anti-American. Move.
You haven’t made any statements yet defending the clear and unambiguous duties of the president when it comes to immigration. I can only conclude that you support open borders.
I respect all borders. They will not be open during my lifetime. I accept them as a fact of life, and celebrate their absence within our 50 united states as a triumph of unity and federation that has produced bountiful commerce that would be absent in their presence. Like a Schengen state, these borders require policing at their exterior, and yet growing their interior is a laudable goal. Commerce, freedom, security.
Erdogan does not – and he is the leader of Turkey. He has threatened open warfare by immigrant invasion of Europe and even declared it to be a religious war between the Cross and the Crscent.
As far as the USA, we have had open borders with Mexico and, thanks to Obama, no real enforcement of immigration law. Of course, fake news says otherwise, but the American workers see through the scam because they see the truth on the ground daily and they are both frustrated and angry. Trump won because of the frustration and anger associated with the political lies and distortions coming constantly from D.C. You can fool some of the people all of the time. You can fool all of the people some of the time. But, you can’t fool all of the people all of the time.
It is interesting to note that for a time Trump gave us Flynn, who it is now revealed was during the campaign and thereafter a paid foreign agent with Turkey as his client. Shocking, really.
When I cross the US border from Canada or Mexico, it never feels open, though I do have a Global Entry pass.
As for what I haven’t made any statements defending the authority of POTUS with respect to immigration, what else is there to say? So long as he upholds his oath to respect the constitution and our laws, he can do whatever Congress will fund and the courts will allow.
The 1st Amendment does not apply to citizens of other countries who do not live here. Those rights are bestowed (sorta’) on all citizens and residents of the US, and even include people who have come to the country illegally. However, those rights do not extend to foreign nationals living in other countries. Imagine if it did – it would mean that we would be obligated to allow the entire world into the US. The judge was looking for an excuse to knock down the EO and used the 1st Amendment as an excuse.
I say the right of religious freedom is “sorta” bestowed on US residents because we have forgotten that it applies to ALL religions. Right now, Muslims are clearly afforded those rights while Christians are not. A Muslim truck driver is allowed to refuse to transport alcohol, but a Christian is not allowed to decide whether or not to provide flowers or a wedding cake for a gay wedding if his religion prohibits it. That is not true religious freedom; it is freedom only for minority religions, which was never the intent of the 1st Amendment.
Since it applies only to Congress (and by extension the US government), that it applies only to Americans is axiomatic: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It bestows nothing further upon anyone. It restricts the actions of Congress/Federal Govt.
It doresn’t apply only to Americans. Anyone on American spoil is also protected by the Bill of Rights, whether they are legal residents, illegal residents, or temporary guests.
There was an instance a few years ago in which the Obama Administration tried to deport a family solely because the children were being home-schooled. The parents won their case based on their First Amendment rights and the intrinsic right to home-school for religious reasons. The parents were able to show that the public school regularly presented opinions that were conrary to the parents’ religious beliefs.
Your second paragraph is most insightful. I go a step further – Islam isn’t a religion but an ideology that contains a religious component. When it is convenient for Islam to claim to be a religion, it is so claimed. However, in many Muslim dominated countries, the pretense of Islam as a religion is quickly dropped and actual minority religions are oppressed both politically and culturally (even to the point of genocide).
Good luck with that argument, that Islam is not a religion. Just when you were beginning to get reasonable, you let loose with a silly zinger like that. You are a lot like your idol.
I wonder if you have ever studied Islamic history. Many read the Koran, but few study the history of Islam or even observe its practices. It almost seems that in Western counties it is treated more as a bizarre curiosity than the danger it presents. I wish this were not so but I cannot dismiss it so cavalierly as you seem to be able to do. By the way, Churchill did not dismiss it.
I am an American. I prefer danger/liberty to security/protection because freedom, especially religion, is paramount. Freedom to believe whatever you choose, even if it is Muslim or Islam or Jewish or Catholic (JFK was called a Papist and inappropriate, would take orders from Rome) or Quaker, whatever. You get to believe that and our government should treat you no differently.
Agreed! Islamism is primarily a political ideology, with a smattering of religion as the pretext for their legal and social dogma. As such, we should be extremely cautious about granting unlimited “religious freedom” for what is essentially a political organization with the goal of undermining the US government.
The Islamists are extremely clever, They have learned how to use our Constitution and our judicial system against us in order to assist them in the goal of eventually conquering , and then controlling the country.
Nope, Trump is high road and democrats do what democrats do.
Right is right and it still matters.
However, there comes a time when presidents do what is necessary. We saw that with both Woodrow Wilson and FDR with internment camps. History then sorted it out decades later.
Now I understand your proposal. Do what you think necessary, sort it out later. Got it. Thanks for your honesty, Warmac. It is refreshing to read how a person of action thinks: Just do it. Just say it. Just tweet it. We’ll sort it out decades later!
As someone once said, the Constitution is not a suicide pact. I am a constitutional conservative who firmly believes that the Constitution is essential for life, liberty and the pursuit of happiness. However, our history as a nation is not without extra-legal events including the Revolution, Civil War, and WW1 and WW2.
I simply watch Europe and recognize that the unfolding future of Europe reflects to some unknown extent our own future. France, for example, is under martial law and has been so for over a year. Erdogan has threatened religious war in europe and is about to open the Turkish border to allow millions of Muslims to invade Europe.
I chose not to ignore the lessons of history simply because it is PC to do so. PC kills and breeds violence and tyranny.
You are a “constitutional conservative” and yet the claims here are that POTUS can ignore the constitution as regards border crossing. Odd that. I expect POTUS to ALWAYS follow the US Constitution, which prohibits religious discrimination (even if it is seen as PC by some). A “constitutional conservative” must believe in the rule of law, full stop, else they are not a “constitutional conservative.”
Not but part of the pay back scheme for the 8 years of Republican obstruction given Obama. Get used to it.
What payback for obstruction? Obama never negotiated with Republicans and seldom with Democrats. He was given a string of continuing resolutions as well as a very friendly federal reserve that allowed him to spend, spend and spend some more without checks and balances. He totally messed up the USA and was free to do so for 8 years. Trump wouldn’t be president if it weren’t for the calumny of the GOPe in all of this.
You are so far from the facts, one just cannot reason with you.
Which fact is that? The facts speak for themselves and are clear and unmistakable. That you choose to ignore them is what separates you from reason.
Are you saying that the Republicans didn’t obstruct for eight years? Or, are you saying that the Democrats are not going to do likewise and obstruct for eight years? Are you saying they are not the facts?
One of the big problems in blogs is that I’m so much further right than you people are that you can’t understand nor comprehend my views.
One example of that is that I want government totally out of healthcare. You people only want government partially out of healthcare, which will not work. So, instead of doing something half assed, I would rather government stay in healthcare because they’re not going to get all the way out because of the corruption of the campaign finance system.
I will not join either union, Republican or Democrat, that refuses to acknowledge and make their number one focus ending the corrupt campaign finance system we have in this country.
You want the govt completely out of health care, so I guess you are wanting to close the Veterans Affairs department. And Medicare, Medicaid. Own that. Declare it. Abandon everyone, including the hospitals relying upon a system that has evolved over the years. I admire your consistency, but the cure will prove worse than the disease. We haven’t the will to implement your consistency, so we focus on fixing what we have.
Can you point me towards a country where your plan is working? It would help me to advocate for it if I had a model somewhere that this works, but I cannot find one.
Yes, the VA healthcare system can go, to the extent that the government will probably always have to handle combat related medical care. However once the injury is healed as much as possible, then the government would be better served by letting private industry handle the veterans healthcare.
Medicare and Medicaid are both private industry being paid by the government, or a better way to say it would be private industry ripping off the taxpayer, via lobbyists with their checkbooks.
Yes, you are right, our healthcare system has evolved over a period of years, evolved into an unaffordable, overpriced, corrupt, second rate or lower system compared to healthcare in the other 32 civilized/ industrialized nations on this planet.
I can point you to the other 32 other countries that make sure affordable health is available to it’s citizens. But, more important, I can point you to 1 country where it is not, the DSA. Divided States of America.
I repeat: Can you name a country that can serve as an example of how it should be done, the way you wish it were? Or can we agree that the problem is 3rd party payment systems that disincentivize recipients of health care from fully scrutinizing the costs with a motive to save?
Great Britain, Canada, Australia. I’d love to have their healthcare system, and their VAT to pay for it.
But, we cannot have that because of our corrupt campaign finance system.
Agreed with you on your examples and perhaps the cause.
You know I don’t know how many politicians offices I’ve contacted and asked about the Republican health care plan.
But, two questions that not one politicians office will answer is this, who wrote the plan? And, where is one word that will put competition in the healthcare industry?
Trump is POTUS because HRC and RINOs is/was/were hated by lots of people for good reasons. Now Mnuchin is asking, no, begging Congress to raise the debt limit for Trump! Trump inherited a country on the mend, the statistics (which Trump said were a lie one month, accurate the next) are consistent.
As you are well aware, the budget in place, really a continuing resolution, belongs to obama not Trump. You can criticize when and if the Trump budget (always DOA) gets mainly approved and signed.
Trump’s a BIG spender, a real estate developer, says he wants trillions in new spending AND tax cuts. No wonder Mnuchin needs a debt limit increase! The boss needs to fill the coffers to build a wall, infrastructure, subways, airports — the whole list of campaign promises. The same way he runs his business: Borrow, borrow, borrow.
Then there will be a string of debt limit increases as was the case with obama and earlier presidencies as well. This is now bad government. We are the largest debtor nation in the world, and I hope that Trump can invigorate the economy and redirect some of the increased tax revenue to debt service. However, I doubt much will go to debt service because politicians inherently love spending other people’s money to buy votes. Last president to really guard the public purse was Coolidge.
Surprise, Warmac! We are agreed! He’s neither a conservative nor a libertarian. Stole the Republican nomination because he detected weakness in the party. Could’ve run as a Democrat almost as easily.
I suggest you read Art of the Deal.
Let’s not forget, our AG Mark Herring joined in with this.
I am not surprised one bit. He has acted as if he won in a landslide since they “found” votes in Fairfax County that barely put him over the top back in 2013.
Who was on the electoral board in Fairfax back then anyway?
Are you referring to a gentleman who went on Rachel Maddow to talk about it?
The guy who didn’t adhere to the rules and allowed the outdated provisional ballots in his unit to offset actual votes of the rest of the state. But maybe I’m just crying BS here.
Thank you for this. We all know the opinion is wrong, and it helps to have more specifics.
If these judges want to legislate then they should run for legislatures. I’m tired of these activist liberal judges who put a premium on their personal politics and pay lip service to what the constitution actually says.
They have a check for a reason. They are an independent branch of government. The essence of America is freedom of religion, this having driven us to form a new nation.
Not so independent, Didja hear President Obama was out Hawaii way yesterday, and the good judge generated a 43 page document two hours after the case was argued. And he was an Obama contemporary and appointee.
I wonder if they used an intermediary, dead drop, or just met on a tarmac somewhere to discuss grandchildren.
And actually it was to freely establish various forms of Christianity.
Your last line is a confirmation, not a refutation. I write it was freedom of religion and your attempt to negate that is confirmation: “actually it was to freely establish various forms of Christianity.” Which was precisely my point: “religious freedom.”
Your fringe allegation was retracted by the news outlet that reported it.
A Maryland judge has now ruled as did the Hawaii judge. How’d that happen? What does that do to your theory? Obama bought them both? At the same time? Many thousands of miles away?
Obama delivered the 43 page decision to the judge for signature.
You write this simply to troll. That you fail to take these issues seriously is more explanation for the descent of the Republican Party in Virginia. The Democrats are running you scared, and that is a shame. We need a viable Republican Party in Virginia.
I thought is a bit of sardonic humor.
The check is supposed to be based on the text of the Constitution, not on the Judge using his personal political biases and calling it constitutional law. The six countries identified account for less than 15 percent of muslims worldwide, so over 85 percent of world muslims are not even impacted. Plus no one doubted that it was Constitutional to treat Cubans differently than other nations if they arrive here safely than those from other Latin American States based on the situations in the country.
Cuba not based on religion. Numbers do not a discrimination complaint make: You can discriminate against one person and violate the law (even if you discriminate against no one else). If the judges acted on their multiple “personal political biases” their decisions should and will be overturned.
The whole basis of the campaign rhetoric being used as the controlling rationale in these decisions is generally unique to these activist judges. As for Cuba, you’re right it’s not on religion, it’s based on the situation of what’s going on in Cuba with a repressive Communist regime. Just like in these six countries it’s based on what’s going on in the States with the lack of reasonable protocols to properly evaluate for terrorist connections. This should be a rationale basis test, and preventing terrorists from coming in from any country is a legitimate government interest.
“They are an independent branch of government.”
Correction: They USED TO BE an independent branch of government. Unfortunately, many in the judiciary have become very politicized. This ruling is a perfect example. The President clearly has the Constitutional right to issue his EO. The 9th Circuit Court overstepped their bounds and ruled from a political, rather than a judicial, point of view.
The mere fact that the 9th Circout has been overturned about 90% of the time should tell you that the Constitution is NOT the basis of their rulings.