Last night, U.S. District Judge Derrick K. Watson issued a
temporary restraining order that prevents the second immigration order of President Donald Trump from going into effect on Thursday. The 43-page opinion is scathing and relies not only on the statements of President Trump but the recent statements of his chief aide Stephen Miller. While I respectfully disagree with Judge Watson and view his decision as contrary to the weight of existing case law, the opinion again shows the perils of presidents and their aides speaking publicly about litigation. Political facing saving comments can be case legal damaging comments. Yet, I still believe that Judge Watson relied too much on campaign statements and television interviews to overcome the facial neutrality of the language of the executive order.
Watson found that there was a “strong likelihood of success” for challengers 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.” He strongly dismissed the argument that this is not a religious ban since it did not impact the vast majority of Muslims: “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
As predicted, the Court also relied on the series of delays in the rollout of the second order as evidence that undermined the national security rationale: “Other indicia of pretext asserted by Plaintiffs include the delayed timing of the Executive Order, which detracts from the national security urgency claimed by the Administration.”
Watson used Trump’s own campaign trail comments and observed that “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.’” He also cited the ill-considered and highly damaging public comments of Rudolph Giuliani saying that he was told by Trump to find a legal way of doing a Muslim ban. He even relied on a press release:
The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The Government need not fear. The remarkable facts at issue here require no such Case 1:17-cv-00050-DKW-KSC Document 219 Filed 03/15/17 Page 34 of 43 PageID #: 4389 35 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.” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)).
He also cited the comments of Stephen Miller from a much criticized public interview
. In the interview, Miller (who reportedly played a major role in the first order) insisted that the second order did little beyond addressing “mostly minor technical differences.” Of course, the problem with that statement is that the first order was found presumptively unconstitutional by the Ninth Circuit. Due to the poor drafting and poor defense of the first order, the Ninth Circuit ruling was not vacated and is still good precedent. Hawaii is in the Ninth Circuit. So, if the second order is basically the same, the court could conclude that it was on good ground to assume that the same basis for the Ninth Circuit opinion still exists with regard to the second order.
It is certainly true that the Supreme Court has been has said that courts may not “turn a blind eye to the context in which [a] policy arose.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005). However, I do not see how the use of these ill-considered comments can establish that the stated purpose of proper vetting is “secondary to a religious objective.”
As previously discussed
, I believe that the odds favor the Administration in prevailing in the long run. It could face a mix of decisions on the lower courts as it did with the first order. However, this order is a better product and presumably the Justice Department will markedly improve its performance in the defense of the order. I do not see how a strong likelihood of prevailing could be maintained on existing case law, particularly under the establishment clause.
Notably, the Court (like the Ninth Circuit) does not discuss the President’s sweeping authority under INA Section 1182(f): “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” Moreover, since the Court rules on the basis of the First Amendment, it does not address the statutory claim that the President cannot discriminate under the INA based on nationality — an argument that I have been critical of in past discussions.
Notably, the decision to go with the establishment claim over the due process claim reduces the weight of the earlier precedent. The court also give surprisingly little attention of the record on poor vetting procedures in these countries and discussing the basis for the order — a serious flaw in its analysis. The decision spends more time on the atmospherics of the campaign than actual case analysis. It is not a particularly strong case and I believe is highly vulnerable on appeal as the Administration moves toward the Supreme Court.
is a copy of the opinion.