Two federal judges, both nominated by President Barack Obama, have issued injunctions against President Donald Trump’s revised executive order temporarily restricting travel from six terrorist safe havens in the Middle East and Africa.
The decisions by Derrick Kahala Watson in Hawaii and Theodore David Chuang in Maryland should shock no one—not because the judges are correct, but because their decisions follow the same pattern as prior decisions in Washington state and the 9th U.S. Circuit Court of Appeals over the first order.
These rulings ignore or misinterpret federal immigration law that gives the president the clear authority to act and prior Supreme Court precedents that support the legality of the president’s actions.
Watson issued a nationwide injunction against enforcement of Section 2 and Section 6 of Executive Order 13,780, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”
These are the provisions that would have suspended entry of foreign aliens for 90 days from Iran, Libya, Somalia, Sudan, Syria, and Yemen, as well as the entry of refugees for 120 days until the Department of Homeland Security has had a chance to revamp its vetting procedures.
Chuang—who worked in the Civil Rights Division of the Justice Department at one point—issued an injunction only against part of Section 2, saying that the plaintiffs had not provided sufficient evidence to warrant an injunction against the refugee provision in Section 6.
Both judges based their decisions on a supposed violation of the Establishment Clause that bars religious discrimination, even though both judges acknowledge that the actual language of the executive order does not discriminate.
Watson admits that it “is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.” Nevertheless, Chuang claims (as does Watson) that “the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.”
These conclusions make no sense. As the government pointed out in these cases, the revised order explicitly explains its national security purposes and provides detailed information on why these six countries were chosen.