5 Problems With The Hawaii Judge Halting Trump’s Travel Ban

5 Problems With The Hawaii Judge Halting Trump’s Travel Ban

A federal judge in Hawaii relied on his feelings and flawed interpretation of Trump's campaign rhetoric to block his latest travel ban.
Mollie Hemingway




1. Feelings, Nothing More Than Feelings











2. Selective Quotations





3. Unforced Errors






A total of 10,722 were Muslims, and 17 were Yazidis.





4. Confusion about the Establishment Clause

The plaintiffs in the case before Judge Watson said the executive order denies them their right to associate with family members overseas and results in “having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.”

Watson uses the three-part Lemon test for the First Amendment. That means the law must have a primary secular purpose, may not have the principal effect of advancing or inhibiting religion, and may not foster excessive entanglement with religion. Watson says it fails the first part of the test. Yet the idea that the executive order has no secular purpose is laughably wrong. One can disagree with the executive order or its goals without denying that those goals are secular.

Watson admits that the executive order doesn’t discriminate for or against any religion or for religion versus non-religion. He admits that the executive order doesn’t even mention anything about religion. He notes that the government defended the religious neutrality of the text and noted what a small percentage of global Muslims the ban covers. But he says “The illogic of the Government’s contentions is palpable.” He says you can demonstrate animus without targeting the entire population and besides, the countries targeted involve a lot of Muslims.

The problem is that Watson neglects to note that the Establishment Clause has not been held by courts to apply to immigration policy. Back to Blackman:

Two decades ago, immigration scholar Enid F. Trucios-Haynes observed in the Georgetown Immigration Law Journal that applying the Supreme Court’s Establishment Clause jurisprudence to long-standing immigration laws ‘is particularly awkward.’ Under either the Lemon test or the related ‘endorsement’ test, a facially neutral law with a non-secular purpose is constitutionally suspect. A law that prefers religion over non-religion is very likely unconstitutional. A law that overtly prefers certain religious sects over others is almost certainly unconstitutional. Yet, immigration law routinely does all of the above, and neither Congress nor the courts have expressed even the slightest concern for the Establishment Clause—that is, until President Trump’s executive order.

Blackman looks at major court cases that have shown preference or favor for one religious group over another, or religious over non-religious, and the courts and other branches of government don’t seem particularly concerned about violations of the Establishment Clause. That’s not to say they couldn’t develop an opposition to immigration policy that benefits persecuted religious minorities, or restricts entry to particular regions with majority religions, but they haven’t demonstrated it thus far.

“My tentative conclusion is the Establishment Clause, in light of foreign policy concerns and Congress’s plenary powers over naturalization, simply has not applied with full force to immigration law,” Blackman writes. He notes that the landmark 1965 Immigration and Nationality Act includes a section designed to root out discriminatory quotas. That section specifically and intentionally doesn’t include religion in the list of what can’t be discriminated against.

5. Judicial Overreach

“This grandstanding judicial supremacism has to stop,” wrote Roger Kimball. Indeed, it’s hard to see how the logic of this temporary restraining order would ever permit a Trump administration to have any immigration policy whatsoever with regard to majority-Muslim countries.


Regardless of one’s views on the particulars of this executive order and its efficacy, the ability to determine who can enter the country is one of the most obvious and important sovereign decisions a people makes. That power is vested in the executive branch and should not be enjoined by rogue judges. Unelected and unaccountable judges ignoring the law in favor of their feelings is a threat to self-government and rule of law. It needs to stop.

Photo By CNN
Photo By CNN
