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March 16, 2017

Banning the Travel Ban, Redux

Another judge finds fault with Trump’s second order.

Just one day before President Donald Trump’s revised immigration executive order was slated to take effect, a federal judge in Hawaii has blocked it. Surprise!

In a 43-page order, Judge Derrick K. Watson issued a preliminary injunction against the order, claiming the challenge against it had a “likelihood of success” based on the Establishment Clause of the Constitution. To his credit, at least Judge Watson cited the Constitution, even if incorrectly — especially since the state of Hawaii, as one of the plaintiffs in the case, argued against the order based on the impact it would have on the state’s university system and tourism industry. Because nothing is more important than national security except, well, lots of happy tourists from the six countries on Trump’s ban list.

Instead, Judge Watson bought the Establishment Clause argument of plaintiff Dr. Ismail Elshikh, which basically says he feels the executive order is a condemnation by the government of his Muslim religion that would make him and his family feel like second class citizens. Watson agreed, writing that “a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.”

Clearly, Watson is more concerned with a couple of Trump’s statements on the campaign trail than the actual law at hand.

More to the point, has anyone told the good doctor and judge that jihadi terrorists are Muslim? Or that the six nations on the ban list are pretty much the most dangerous and least vetted places in the world?

Although Watson concedes this order “does not facially discriminate for or against any particular religion” and that the government defends it “principally because of its religious neutral text” in that it applies to individuals of all religions in six countries linked to terrorism, yet he blisteringly claims, “The illogic of the Government’s contentions is palpable.”

Of course, as Hans von Spakovsky notes, there actually was some logic in selecting the six countries named in the order: “Three of the countries — Iran, Syria, and Sudan — are listed by the State Department as official sponsors of terrorism, while the other three — Libya, Somalia, and Yemen — were listed as ‘countries of concern’ because of their terrorism problems by Jeh Johnson, Homeland Security secretary under Obama.”

Undoubtedly, had Watson or anyone else scoured the world to find predominantly Christian or Hindu countries that are official sponsors of terrorism, he would have come up empty handed. But facts aside (as they often are when it comes to judicial rulings), for now at least, the order is on hold.

Trump blasted the “terrible” ruling that was “done by a judge for political reasons.” In fact, he said, “The danger is clear, the law is clear, the need for my executive order is clear.”

Meanwhile, the First Amendment isn’t the only one getting attention when it comes to immigration. The Tenth is getting in on the action, too. On Monday, Tennessee became the first state to use the “reserved powers” clause to sue the federal government — not for keeping immigrants out but for forcing refugee resettlement within state borders.

The Tennessean reports, “The lawsuit … alleges that the federal government has violated the 10th Amendment, which says the federal government possesses only the powers delegated to it by the U.S. Constitution and that all other powers are reserved for the states.” It argues that the feds have “unduly forced states to pay for the refugee resettlement program” and “asks the court to force the federal government to stop resettling refugees in Tennessee until all costs associated with the settlement are incurred by the federal government.” The Tennessean reports that in fiscal year 2016, more than 2,000 refugees were resettled in the state.

Of course, Barack Obama, not Donald Trump, ordered the forced resettlement, though as of yet, Trump hasn’t vacated that order. Hence, although filed against the Trump administration, the lawsuit is targeting an Obama-era policy.

It remains to be seen how the court will rule, but if Tennessee wins, perhaps Hawaii will volunteer to take Tennessee’s allotment of refugees. After all, opposition to Trump’s executive order aside, of the nearly 85,000 refugees the U.S. admitted in fiscal year 2016, guess how many the Aloha State took in? Exactly zero.

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