An even more appalling specimen of fake law has been generated by Trump’s executive order restricting entry into the country by nationals of six foreign countries for 90 days and suspending refugee admission for 120 days. In one court order, a Hawaii federal district judge rejected the government’s claim that the six nations posed special security threats (on this, the Trump and Obama administrations are aligned) and concluded that the order violated the establishment clause. Relying principally on obscure dicta from Justice David Souter’s opinion for the Supreme Court in McCreary County v. ACLU (2005), the court held that the “unique,” “remarkable” “historical context” of the order, “full of religious animus, invective, and obvious pretext,” tainted it with anti-Muslim bias and therefore evidenced a purpose to make a law respecting an establishment of religion.
The court pointed to campaign statements by Trump that “Islam hates us” and by his “surrogate” (a media term appropriated by the judge) Rudy Giuliani’s description of a campaign conversation with Trump about a “Muslim ban” to justify its holding. This executive order was narrower than its predecessor—but somehow that counted against the government. In reaffirming its decision in a preliminary injunction, the court erupted in sanctimonious disgust: “The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.”
McCreary County was a 5-4 decision in which the Supreme Court concluded that two Kentucky counties’ displays of the Ten Commandments in their respective courthouses were unconstitutional because each of three iterations of the displays evinced to a “reasonable observer” the same impermissible, nonsecular purpose—the promotion of Christianity. “Reasonable observers,” the Court intoned, “have reasonable memories.”