Engaging today's political economy
with truth and reason

sponsored by

The New Executive Order: “Here Comes the Judge”–Again

16 Mar 2017

Once again a Federal district court judge has issued a nationwide Temporary Restraining Order (TRO) prohibiting enforcement of the president’s new executive (EO) order temporarily suspending entry into the United States of non-citizens living outside the United States for a period of 90-120 days, with waivers possible for defined exceptions.  The EO identified six nations as targeted by its provisions.  The reasons stated were the possibility or likelihood that these nations were producing or would produce terrorists.  I have reproduced below the district court’s summary of section 2 of the EO because I believe it is crucial to understanding this holding:

“Section 2 of the new Executive Order suspends from “entry into the United States” for a period of 90 days, certain nationals of six countries referred to in Section 217(a)(12) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 5 The Government also requested “an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal” on February 4, 2017 (Emergency Mot. to Stay, No. 17-35105 (9th Cir.), ECF No. 14), which the Ninth Circuit panel swiftly denied (Order, No. 17-35105 (9th Cir.), ECF No. 15). 5 § 1101 et seq.: Iran, Libya, Somalia, Sudan, Syria, and Yemen.6 8 U.S.C. § 1187(a)(12); Exec. Order § 2(c). The suspension of entry applies to nationals of these six countries who (1) are outside the United States on the new Executive Order’s effective date of March 16, 2017; (2) do not have a valid visa on that date, and (3) did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017 (the date of the prior Executive Order, No. 13,769). Exec. Order § 3(a). The 90-day suspension does not apply to: (1) lawful permanent residents; (2) any foreign national admitted to or paroled into the United States on or after the Executive Order’s effective date (March 16, 2017); (3) any individual who has a document other than a visa, valid on the effective date of the Executive Order or issued anytime thereafter, that permits travel to the United States, such as an advance parole document; (4) any dual national traveling on a passport not issued by one of the six listed countries; (5) any foreign national traveling on a diplomatic-type or other specified visa; and (6) any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See Exec. Order § 3(b). 6 Because of the “close cooperative relationship” between the United States and the Iraqi government, the Executive Order declares that Iraq no longer merits inclusion in this list of countries, as it was in Executive Order No. 13,769. Iraq “presents a special case.” Exec. Order § 1(g). 6 Under Section 3(c)’s waiver provision, foreign nationals of the six countries who are subject to the suspension of entry may nonetheless seek entry on a case-by-case basis. The Executive Order includes the following list of circumstances when such waivers “could be appropriate:” (i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long term activity, is outside the United States on the effective date of the Order, seeks to reenter the United States to resume that activity, and denial of reentry during the suspension period would impair that activity; (ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of the Order for work, study, or other lawful activity; (iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations; (iv) the foreign national seeks to enter the United States to visit a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship; (v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case; (vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of 7 such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government; (vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOAI), 22 U.S.C. § 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under IOIA; (viii) the foreign national is a landed Canadian immigrant who applies for admission at a land border port of entry or a preclearance location located in Canada; or (ix) the foreign national is traveling as a United States Government sponsored exchange visitor.” (see STATE OF HAWAI‘I and ISMAIL ELSHIKH, Plaintiffs, vs. DONALD J. TRUMP, et al., CV. NO. 17-00050 DKW-KSC)

Section 2 is the heart of the EO.  The judge, from Hawaii, and an Obama appointee, and following the plaintiff’s argument in the main, held that the plaintiffs, State of Hawaii and an individual, were likely to succeed on the merits of the case.  The rationale was rooted for the individual mainly in a kind of Establishment Clause argument.  The individual plaintiff’s argument was based on religion, and for the state, based on its “proprietary interest” (including for example, the loss of money at state universities due to lower enrollment (!)).  Below is the individual’s argument as summarized by the judge:

“Plaintiffs assert the following causes of action: (1) violation of the Establishment Clause of the First Amendment (Count I); (2) violation of the equal protection guarantees of the Fifth Amendment’s Due Process Clause on the basis of religion, national origin, nationality, or alienage (Count II); (3) violation of the Due Process Clause of the Fifth Amendment based upon substantive due process rights (Count III); (4) violation of the procedural due process guarantees of the Fifth Amendment (Count IV); (5) violation of the INA due to discrimination on the basis of nationality, and exceeding the President’s authority under Sections 1182(f) and 14 1185(a) (Count V); (6) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 200bb-1(a) (Count VI); (7) substantive violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2)(A)–(C), through violations of the Constitution, INA, and RFRA (Count VII); and (8) procedural violation of the APA, 5 U.S.C. § 706 (2)(D) (Count VIII).” (STATE OF HAWAI‘I and ISMAIL ELSHIKH, Plaintiffs, vs. DONALD J. TRUMP, et al., CV. NO. 17-00050 DKW-KSC).

This argument to me seems absolutely and unassailably beyond the the authority of any judge in the United States.  First, the individual (the mother-in-law of the named plaintiff) resides outside the country and is not even present in the country, and therefore can have no First Amendment right.  Nor can he have any RFRA right of relief, for the same reason.  Rights, except for those narrowly recognized by the Supreme Court, are not applicable to non-citizen, non-resident individuals–who are not even being held in a prison, as in Guantanamo case (Boumediene v. Bush, 2008).  Nor are Due Process rights applicable.  This is in fact an example of a judge making up a ruling to justify his favored outcome.

In addition, the TRO is issued in case the plaintiffs are likely to succeed on the merits.  Given the novel (to say the least) theory, how could the judge believe they were likely to succeed–unless of course he was thinking about the Ninth Circuit on any appeal, in which case he was probably right.

Third, the president has nearly unlimited authority in cases such as these, granted in Article II and by Congress in the statute cited by the judge.  It looks first of all as if the judge gives almost no authority to a president that belongs to him constitutionally. He is effectively ignoring the Constitution.  Second, I don’t know what kind of strained interpretation of the statute the judge is using to argue that the EO does not comport with it.

As for the Establishment Clause argument in more detail, here is what the judge writes:

“Dr. Elshikh attests that he and his family suffer just such injuries here. He declares that the effects of the Executive Order are “devastating to me, my wife and children.” Elshikh Decl. ¶ 6, ECF No. 66-…These injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context.” (Ibid.)

How can one not affected legally by the EO assert standing to sue, alleging an injury that is purely psychic?  Moreover, the judge cites only one case, an American case involving only American citizens living in the United States.

And here is the judge’s reason for alleging that the plaintiffs are likely to succeed on the merits in a trial:

“The Court turns to whether Plaintiffs sufficiently establish a likelihood of success on the merits of their Count I claim that the Executive Order violates the Establishment Clause of the First Amendment. Because 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, 29 in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.” (Ibid., emphasis added)”

This is without precedent, except in the first EO’s case before the Washington court.  The argument is that the EO disfavors a religion.  How does he arrive at that conclusion?  From remarks made by Donald Trump in campaign speeches.  What?  Is that dispositive of the intent of an executive order?  If that is the case, then any remark any person makes can at any time be taken as proving their intent in issuing any kind of legislation or regulation.  Campaign rhetoric?  And even at that, who is to say that Trump meant Muslims or was just using the term as a convenient label for terrorism?  And don’t most terrorists now come from among Muslims, whether radicalized in other nations of here?  This judge actually gave most weight to Trump’s campaign comments, which, by the way, did not consistently use the term “Muslim ban” at any rate.  The judge dismissed out of hand the government’s arguments, substituting his own mind-reading activity.  He even dismissed the arguments in the EO and by the government that terrorists might be prevented by the EO, saying that he knew better, since some “studies” have “shown” that most terrorists were home-grown.  So what, if that is true?  If most are home-grown, does that mean we can’t prevent the few that are not?  The judge even called the government’s arguments “pretexts” masking their “real” intentions.

There is much more I could say and I have already written too much.  For the present, I can only say that if this decision on trial or appeal should hold up, and make it to the Supreme Court, that court surely would see the naked political agenda and overturn the lower courts.  On the other hand, SCOTUS has not been particularly reliable either.  I see this as potentially another example of a growing constitutional crisis.