Let’s start with the law.
The president of the United States has power to bar “any class of aliens” both as immigrants and as nonimmigrants and to impose on their ordinary comings and goings “any restrictions he may deem appropriate.”
That’s the language of the U.S. Code, the law of the land as enacted by Congress, under Congress’ own constitutional power over immigration and naturalization.
Presidential power is never absolute, of course. It’s always subject to the Constitution. Many have argued that Trump’s ban is unconstitutional because—as the president himself has repeatedly said—it’s intended to ban Muslims, and should be regarded as prohibited religious discrimination.
But here’s the problem for those making the argument: It’s firmly established U.S. law that the rights of the Constitution belong only to Americans. The U.S. Army can strip enemy combatants of weapons without offending the Second Amendment right to carry firearms. It can billet troops in private dwellings overseas without offending the Third Amendment. The NSA can intercept foreign communications without regard to the Fourth Amendment. The U.S. courts do not hear cases from foreign nationals who complain their due process rights under the Fifth Amendment have somehow been infringed. And so through the gamut.
Where do foreign nationals then acquire their supposed First Amendment right to enter the United States without religious discrimination?
The answer offered by Judge Derrick Watson’s opinion is a judicial reach of a kind that might sound clever to the student editors of an academic law review—but that should worry all Americans in real life. By barring foreign Muslims, the opinion argues, the Trump administration has signaled disfavor of domestic Muslims as well, thereby violating their First Amendment rights to religious equality.
Not only that! Watson’s opinion further contends that this argument is so convincing that it is “highly likely” to prevail on the ultimate merits—and for that reason, that he is justified in issuing immediately a temporary restraining order against Trump’s ban.
This double argument is bold, to put it mildly.
Under any other president, it seems impossible that a federal judge would have expressed such certitude.
What it does, in effect, is globalize the First Amendment (and possibly other amendments too) provided only that a fellow adherent of that religion live inside the United States.
This approach is so ambitious and so new that it renders incredible. Judge Derrick Watson’s claimed certitude that the plaintiffs are “highly likely” to prevail. Their chances are at best touch-and-go; at worst, probably doomed.
Frankly, under any other president than Donald Trump, it seems impossible that a federal judge would have expressed such certitude—or granted their requested order. The federal courts have historically granted large deference to presidential power over immigration and naturalization. The Supreme Court ruled as recently as 2015 that the president could deny a visa to an alien for no reason at all! In answer to an alien who contended that the U.S. government had violated her due process rights, the court ruled:
She claims that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse. There is no such constitutional right.
Why then did Watson accept the far-fetched argument that aliens can acquire First Amendment rights at second-hand? Watson candidly confessed that he was swayed by the avowals by the president and his senior aides that their motives were indeed based on irrational religious discrimination. “In this highly unique case,” he wrote, “the record provides strong indications that the national security purpose is not the primary purpose for the travel ban.” He could not overlook “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”
To amend an old saying: Bad presidents make bad law. Because President Trump is behaving in an unprecedented way, Watson feels called upon also to behave in an unprecedented way. In order to defend a constitutional value—equal treatment of all American religions—Watson has issued an order that corrodes the constitutional system itself. It’s a lose-lose proposition, because either way a constitutional norm would be weakened before the world.
Frankly liberal actvists judges that allow for so called refugees from hostile nations to imagrate to america and who commit crinimal acts should be held totaly responsible and financialy liable
the last two opinions were rendered by deorats judges appointed by the radical muslin terrorist ex pres.
are these two along with the ca. 9th district going to take responsibility when all hell breaks loose? NO. all will hide under the tenant that federal judges can not be held responsible for outcome.
The over reach of the ignorant and ill informed Part 2 how many of these Friday the 13th or Nightmare on Elm street rulings do we put up with?
They are waiting til the president over rules the court basically tells them to go to hell so they have grounds for impeachment.
Its ok for Democrat Presidents to block from certain countries but not Trump, WTF.
Our constitution is ours for our citizens ONLY does not apply to the entire world. Do the liberals know how many wars would break out if we enforced our constitution for every person on the planet? Lets try that one, demand China, Russia and North Korea give their people the same rights as we have. Yes insane, that happens everytime I try liberal logic.
It is time to impeach some federal judges.
This is the kind of idiot judge who would block the construction of a new hospital becuase of some stupid lizard(they already did with dumb fly)the judge belongs at unemlpoyment office the kind of judge liberals would want