This makes twice that Judge Derrick Watson has blown up Trump’s executive order on the launchpad, this time just a few hours before it was set to take effect nationally. Guess who appointed him to the bench.
Previous versions of the ban have been halted on grounds that they discriminate against Muslims, citing statements Trump made as a candidate as evidence of a constitutionally impermissible purpose. Travel ban 3.0 sought to solve that problem by including a few non-Muslim countries on the “prohibited” list, most notably North Korea and Venezuela. You can’t knock down an executive order for discriminating on the basis of religion if it doesn’t actually discriminate on the basis of religion, can you?
Perhaps. But why worry about religious discrimination if you can ding Trump for discriminating on the basis of … nationality?
Trump hasn’t shown that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” U.S. District Judge Derrick Watson in Honolulu said Tuesday in issuing a temporary restraining order against the administration.
Federal immigration laws “do not afford the President unbridled discretion to do as he pleases,” the judge said…
The third iteration of the ban “plainly discriminates based on nationality,” Watson said, adding that it also “improperly uses nationality as a proxy for risk.”
The relevant statute, 8 U.S.C. 1182(f), says:
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.
“Any,” “all” — that statute sure is broadly written! It gives the president wide latitude to bar entire classes of foreigners from the country if he determines they’re “detrimental to the interests of the United States,” which is itself about as broadly written as one could hope for. Congress could have limited the president’s authority to national security specifically but “the interests of the United States” goes far beyond that. Trump’s rationale for declaring entire countries off-limits for travel to the U.S. was straightforward: Because the governments of those countries are unable or unwilling to share critical info about individual travelers, and because the countries themselves contain elements that are hostile to the U.S., the federal government has to presume that any particular traveler might pose a risk of “detriment.” If we can’t vet people to our satisfaction before they enter the United States, they don’t enter the United States. Err on the side of caution.
No dice, says Watson, citing the Ninth Circuit. That’s discriminatory:
The feds can always reject an individual visa application for security concerns, he allows. Why do they need to categorically reject *every* visa application from a given country, particularly when they haven’t showed that current vetting procedures are inadequate? And why, if the new ban is all about inadequate information-sharing by the banned countries, are some countries omitted from the ban even though they’re guilty of the same thing? Iraq was left out of the ban as a goodwill gesture, to preserve U.S. influence over the Iraqi government, even though its own information-gathering and sharing procedures about its citizens are poor. Perfect consistency or bust, says Watson! He’ll micromanage executive administration of immigration policy no matter how many new executive orders it takes.
What we’re having an argument about here, obviously, is how much discretion the president should have under existing immigration law to exclude people. Put that question in front of an Obama appointee who presumes bad faith by Trump and you’ll find it very narrowly circumscribed despite the breadth of Section 1182(f). Put it in front of a right-leaning Supreme Court and you may get a different result. For all the hype about the coming SCOTUS term and the various blockbuster decisions in the making, none will prove or disprove Gorsuch’s worth to Trump as much as his vote on the travel ban. If he hands Trump a victory by upholding the ban, it’ll be the ultimate return on investment for POTUS. If he shanks Trump by voting with the liberals, good lord. That’ll be a rage-tweeting session for the ages.