Ban Wrongfully Struck Down

President Donald J. Trump’s second executive order, which barred entry to the country from several Muslim-majority countries, was blocked by the United States District Court for the District of Hawaii. District Court Judge Derrick K. Watson’s decision to strike down the legislation is an egregious judicial overreach. I have no intention of defending the orders of Trump; his executive orders on the travel ban are ignorant, but we simply cannot waste our finite power enforcing legislation that is so ineffectual. Political disputes, however, cannot justify an abdication of duty.

The judiciary is not intended to be the arbiter of morality. In its decision, the U.S. District Court  abdicated the responsibility we entrust in them to preserve our Constitution and our country by blocking the order on the grounds that Trump’s rhetoric disqualified its legitimacy.

As Watson explained, our government is confined to passing only legislation that “[has] a primary secular purpose,” that being the first prong of what is called the “Lemon test.”

Since the Court blocked the order, one would expect the Court to cite how the text of Trump’s executive order serves non-secular or discriminatory motives. Unfortunately, in the entire explanation of how Trump’s order does so, the text of the order itself was only lightly analyzed. The Court did not consider the erasure of the word “religion” from the first draft at all.

Watson relied on Trump’s campaign rhetoric, not the text of the order itself, to surmise that the order serves some non-secular end. (Though the standing of the plaintiff was tenuous as well, that is outside the scope of this opinion.)

Ultimately, Trump’s campaign rhetoric and motivations should never matter to any Court. All judges should consider is the language of the executive order, and thereby, its effect in practice. As no party is arguing that the order is ambiguous, the Court should be bound to a purely textual reading.

Trump’s character may be open to attack due to his own motives, but the order itself is not if it does not inhibit the practice of religion. If the president attempted to pass a law for non-secular reasons, but it still had no effect on religion, I could criticize his motives, but have no legal dispute with the order itself. Conversely, if that was not Trump’s intention but had that effect coincidentally, I would rejoice his motives but support the  blocking of the order.

Secondly, the Court’s decision does not enumerate how the order will serve a non-secular end, only that the order disproportionately impacts Muslims. But such laws can still be legitimate — in fact, countless laws do so, and are.

For instance, affirmative action is an example of constitutionally valid discrimination, which disproportionately disadvantages white and Asian students in college admissions. This is a side effect of initiatives intended to promote diversity, which is a legitimate goal, per the Supreme Court. If whether or not a law disproportionately impacts a subset of the population determined its constitutional legitimacy, few laws — certainly none of any magnitude — could be ever be ruled legitimate.

Of course, there is a legitimate incentive to curtail radical Islamic terrorism. Unfortunately, that initiative, by definition, disproportionately impacts Muslims. That, however, does not mean that Muslims were targeted by the order, only that Muslims are disproportionately affected by it — this is the fundamental distinction between a law “having a non-secular purpose” and having a non-secular impact. Watson at no point describes how the order once enacted disproportionately impacts Muslims in an illegal or illegitimate fashion, or violates the Constitution.

Given that the Court surmised Trump’s motives from his campaign rhetoric, not the order itself, everything in that decision indicates that if former U.S. President Barack Obama issued the exact same executive order just three months ago, the Court would render it legal. Running a democracy this way could not even not even possible. Politicians would be forced to mince their every word, rendering their speeches incoherent.

Ultimately, the District Court blocked the executive order for reasons divorced from the text. The U.S. District Court’s flippancy towards Trump’s order came at the expense of shirking its duty to preserve our Constitution.

Grant Osborn is a College sophomore from Springfield, Ohio.

0 comments