A Federal Judge in Hawaii Upsets the Constitutional Order to Defy Trump

David French:

The unfolding series of judicial decisions blocking the Trump administration’s past and present temporary travel bans — especially the ruling handed down last night in Hawaii — if upheld by courts of appeal or the Supreme Court, would risk fatally undermining our nation’s constitutional national-security structure and our national sovereignty, and could extend and magnify our military conflicts abroad. To understand why and how, you have to know the meaning of one word: “standing.”

To simplify a rather complex legal doctrine: Rules on “standing” mean that not just anybody can waltz into federal court and challenge government actions. To maintain an action, you must demonstrate that you have suffered a violation of a recognized right. To use the lingo of the courts, you must show that your injuries are “concrete and particularized.”

If you’re, say, a shopkeeper in Raqqa, Syria, who possesses neither a visa granting you entry to the United States nor a green card, you have precisely zero recognized constitutional rights that help you gain entry into this country. If you hired a lawyer in the United States in an effort to sue your way into this country, claiming rights under the First Amendment, a court would toss you out of court with all due speed.

Faced with this legal reality, here’s what the Hawaii court did: It used the hurt feelings (yes, really) of American residents and the hypothetical economic harm to American states and local institutions to functionally grant constitutional rights to tens of millions of non-Americans living in jihadist, and jihad-dominated, countries.

Here’s how it worked. The court held that because that shopkeeper in Raqqa might want to be a Hawaiian tourist (or some Syrians might want to be Hawaiian tourists), all Syrians everywhere should be free of the temporary travel ban regardless of where they want to travel in the United States. Or because some few Syrian scholars might want to study in Hawaii, all Syrians everywhere should be freed from the temporary travel ban.

But the court went even further, holding that the state had an interest in preventing its citizens from feeling “marginalized” and that the state’s citizens had a right to be free of a government message disapproving of their religion. To protect the feelings of some citizens, that shopkeeper in Raqqa — and therefore all Syrians everywhere — should be freed from the temporary travel ban.

Doubt me? The state of Hawaii argued that it had standing to challenge the president’s temporary travel ban because:

The Executive Order subject[s] citizens of Hawaii . . . to discrimination and marginalization while denying all residents of the State the benefits of a pluralistic and inclusive society. Hawaii has a quasi-sovereign interest in “securing its residents from the harmful effects of discrimination. . . . The Order also harms Hawaii by debasing its culture and tradition of ethnic diversity and inclusion.

The court granted an individual citizen standing to sue in part because he was “deeply saddened by the message [the executive orders] convey.” (Even a more careful and more-limited Maryland district-court decision granted standing to mount an establishment-clause challenge in part because one plaintiff said the order caused him “stress and anxiety.”)

With standing granted, the court then took the next astonishing leap and actually applied the establishment clause of the Constitution, specifically the infernal Lemon test, to an arena where the Constitution grants Congress and the president extraordinary authority. The Lemon test holds that any governmental action must have a secular purpose, may not have the “principal effect” of advancing or inhibiting religion, and cannot “foster excessive entanglement with religion.” If the challenged action flunks any prong of the test, it fails.

The court then walked through multiple Donald Trump statements (some irresponsible, some factual) in an effort to prove that the primary purpose of the order wasn’t secular. It of course quoted Donald Trump’s campaign statements in favor of a Muslim ban, a plan he unquestionably did not enact, but the court also — curiously and dangerously — quoted statements from Trump that happen to be true. For example:

In March 2016, Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, Is there a war between the West and radical Islam or between the West and Islam itself?” He replied, “It’s very hard to separate. Because you don’t know who’s who.”

While the first statement, (“I think Islam hates us”) is plainly overbroad, the second statement is plainly and clearly correct. It is at times quite difficult to separate and distinguish between the radicals and the moderates, and we often don’t know “who’s who.” If we always knew, then 9/11 wouldn’t have happened, nor would we have had dozens of attacks and plots since 9/11.

Next, the court quotes this comment from then-candidate Trump:

But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States . . . and of people that are not Muslim.

It’s simply astonishing that the court would find the comment problematic. Where has this judge been for the last 15-plus years? Does the court not recognize the plain truth of this statement? American immigration policy has long sought to block the entry of people who adhere to dangerous anti-American ideologies. The fact that our current enemy’s anti-American ideology is fundamentally religious does not grant it constitutional privileges under the First Amendment.

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