Hawaii judge on why travel order is a Muslim Ban

Here’s a nice excerpt from the “sometime scathing” (according to The Guardian) order by federal district judge Derrick Watson in Honolulu striking down Donald Trump’s second attempt to bar travel from certain Muslim countries.

Basically, he’s calling “bull” on the alleged motives for the ban:

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’.

Judge Derrick Kahala Watson

Judge Derrick Kahala Watson

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.’”

17 thoughts on “Hawaii judge on why travel order is a Muslim Ban

  1. Bryan Caskey

    Just did a quick read of the order. The court concedes that the EO is facially neutral, but because of things outside of the EO (statements made during a Presidential campaign) now create a situation where the EO is now somehow unconstitutional.

    This sort of seems strange to me. If this is the case, then the court is saying that the same EO could be completely legal and implemented by a different Executive, who didn’t say these things on a campaign. Does that strike anyone else as odd? This President cannot do something that another President could do, simply because of some comments outside the scope of the policy?

    This just seems very strange. It’s “This President is implementing what is a fair policy, but he’s doing it for bad reasons” isn’t quite the most convincing legal argument. In fact, it’s sort of a political argument when you think about it.

    I seem to remember the Obama administration saying that the individual mandate was a penalty, not a tax, and then SCOTUS promptly ruled that it was a tax. Remember that? I don’t seem to remember Justice Roberts saying “Well, considering what the Obama administration said, we’re stuck with that.” No, he read the law, conceived it to be a tax, regardless of what political discourse was out there, and ruled accordingly.

    I think this is a pretty suspect ruling, not to mention some of the other issues that look like grounds for a reversal.

    Note: I’m not addressing whether the EO itself is, or is not, good policy. I’m just looking at the legal analysis with a cold eye. Personally, I think the EO is a bit silly and doesn’t really amount to much practical, added safety.

    1. Doug Ross

      Agree with you, Bryan. That is a very bizarre rationale by someone who is supposed to be a judge. “I don’t care what it says, I know what you mean.” Sort of removes any semblance of impartiality. I would liken it to a judge voting down a medical marijuana law because “I know you really want to legalize all pot”.

      This guy is setting a bad precedent for future executive orders.

    2. Brad Warthen Post author

      Good points. Maybe it won’t hold up.

      I hope we can hold the order off for a bit, though, for personal reasons.

      My daughter is heading to Portugal tomorrow, and her plane takes her first to Casablanca. Assuming she can obtain letters of transit (which I understand are essential), she will then take the plane to Lisbon.

      Travel arrangements out of Casablanca are complicated enough — my daughter and I just watched this documentary last night, so she can be prepared — without complicating travel in Muslim countries further with an order such as this…

      1. Brad Warthen Post author

        I’m shocked, SHOCKED that no one answered with any “Casablanca” references.

        My daughter actually IS headed to Lisbon today, via Casablanca. I wasn’t just having fun with pop culture…

      2. Bryan Caskey

        Remember to remind her that everyone goes to Casablanca for their health, to take the waters.

        I’m sure she’ll be fine, but if she does get stopped by the authorities and asked about her nationality, she can say that she’s a drunkard, which makes her a citizen of the world. They’ll accept that answer. Oh, and you can also let her know that if she does meet with them, even if she gets there at 6:00AM, they don’t usually roll in until 10:00AM.

        Final word of advice: In the saloons, let her know that she either needs to lay off politics or get out.

    3. Brad Warthen Post author

      Lindsey Graham’s with you, Bryan:

      “With all due respect to the judges involved, I believe the new Executive Order – requiring more vetting and limiting visas from at-risk nations – will prevail on appeal. It’s not a Muslim ban.

      “While I had great concerns about the first Executive Order, I believe the new proposal falls within the authority of the President to control lawful entry into our nation. The nations in question have become more unstable over time, not less.

      “This has now become a referendum on the ability of the Commander in Chief to make national security policy and I support taking this issue all the way the Supreme Court.”…

      1. Bryan Caskey

        When you start out anything by saying “With all due respect…” whatever you say next is invariably something bordering on an insult. Somehow saying “with all due respect” inoculates the balance of your comment.

        For example, compare these two statements:

        “You’re being unreasonable in your settlement negotiations today.”

        “With all due respect, you’re being unreasonable in your settlement negotiations today.”

        Doesn’t the second one just sound better? It’s amazing.

          1. Bryan Caskey

            If you’re going to go with a big insult you really need to balance it out with a “bless your heart”.

            Example: Imagine I’m talking to my law partner about you.

            “Brad Warthen is a big, fat idiot.”

            “Bless his heart, Brad Warthen can’t help but be a big, fat idiot.”

            The insult’s still there, but it’s really softend up. It’s almost like it’s not you’re fault that you’re a big, fat idiot. “Bless your heart” is when you’re really about to insult someone.

  2. Mark Stewart

    Normally, I would agree that it isn’t the soundest legal argument/ruling. However, taken in context of what these bozos have said (Trump, Bannon, his slimy sidekick and Giuliani – and maybe Sessions, too) it would be asine to rely simply on the scrubbed written document when it is crystal clear the intent is prima facie unConstitutional.

    1. Brad Warthen Post author

      Hah, Bryan! You’re laid by the lee, completely dished! Mark used Latin there. Either that, or he was talking foreign.

      I wish the doctor had been here to see it.

      But I think what you said earlier was pretty persuasive, as unjust as it may seem to us laymen not to consider what the man has plainly said he was going to do. The law says what it says. The rest lies in the political sphere…

    1. Brad Warthen Post author

      You know what? I typed “Hawaii,” and then changed it to “Hawaiian.” I think the reason I did that was to stress that he’s not a state judge, but a federal judge who happens to be in Hawaii.

      But it doesn’t work for that, does it? I wouldn’t say, “South Carolinian judge” to refer to Richard Gergel (the federal judge in the Dylann Roof case), even though Richard IS a South Carolinian.

      Of course, “Hawaiian” is also an ethnic designation, which is not the case with “South Carolinian.” I thought about that when I typed it, then told myself his middle name, “Kahala,” sounded Hawaiian to me, so…

      Anyway, I changed it. Mahalo…


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