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In the last few hours a US Federal Judge in Hawaii, Judge Derrick Watson, has imposed a temporary restraining Order on President Trump’s second ‘travel ban’ Executive Order.
I do not yet have the transcript of Judge Watson’s decision. However I understand that Judge Watson sought to use comments made by various persons associated with the administration – including possibly the President himself – to interpret the Order as discriminating against Muslims.
In doing so Judge Watson appears to have acknowledged that he was going beyond the text of the Order itself, which expressly says that it does not discriminate against Muslims, and that it is purely an anti-terrorist measure.
The one extract of Judge Watson’s decision which I possess seems to bear that out. It reads as follows
The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decision makers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts”.
The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.
For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”….
On February 21, Senior Advisor to the President, Stephen Miller, told Fox News that the new travel ban would have the same effect as the old one. He said: “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect….
These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.
Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.
(bold italics added)
This does suggest that Judge Watson interpreted the Executive Order not so much on the basis of its text but based on his opinions of what a number of people – including possibly the President himself – might have said about it.
If so then I have to say that at least to an English eye this does look like a case of judicial overreach, just as the President is now reported to be saying.
I say this because at least in England a court will generally only look at the text of the law itself when interpreting a law, rather than comments made about the law, even if those comments were made in parliament as parliament voted for the law. This is because it is the law as written which the courts administer and enforce, not some opinion about the law, even if that is an opinion expressed by one of its makers.
Of course the US may be different, especially when the subject is an Executive Order of the President’s rather than legislation enacted by Congress, but I have to say I doubt it.
I understand that Judge Watson did cite a precedent in support of what he did. However I gather it is a precedent which goes back no earlier than February, when a judge in Virginia granted relief to an individual plaintiff caught up by the enforcement of the first ‘travel ban’ Executive Order.
If this is all correct – and I reiterate that I have not yet read the entirety of Judge Watson’s decision – then unlike the previous decisions on the first Executive Order of Judge Robart in Seattle and by the appeal court of the ninth circuit, both of which seemed to me well reasoned, this one of Judge Watson’s looks wrong, and I expect it to be set aside on appeal, if not by the federal appeal court then eventually by the Supreme Court.
The Justice Department is reported to have released the following statement following Judge Watson’s decision
The department of justice strongly disagrees with the federal district court’s ruling, which is flawed both in reasoning and in scope. The president’s executive order falls squarely within his lawful authority in seeking to protect our nation’s security, and the department will continue to defend this executive order in the courts.
That strongly suggests the Justice Department will move swiftly to take the case to appeal and if necessary to the Supreme Court.