Kelly: Honolulu judicial review unconstitutional


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The U.S. Supreme Court recently made two landmark decisions regarding workers’ rights for members of the LGBTQIA+ community and the legal status for immigrant children protected by DACA.

Tom Kelly

Last Wednesday, Honolulu district judge Derrick Watson issued a nationwide, temporary restraining order against the Trump administration’s revised executive order regarding immigration. Unfortunately, Judge Watson’s reasoning is not only unsound, but also sets a dangerous judicial precedent.

The most basic flaw of the decision is in the court’s granting of legal standing to plaintiff Ismail Elshikh, a Muslim-American doctor. First, he is an American citizen of Egyptian descent. The executive order does not apply to American citizens, nor does it reference immigration from Egypt. The court found that Elshikh — whose mother-in-law lives in Syria — has standing to sue in part because he was “deeply saddened by the message [the executive orders] convey.” Most government action affecting broad swaths of people is devastating to someone. However, this does not grant every disaffected person legal standing to sue the government.

The second problematic pronouncement of the ruling was its application of the establishment clause of the Constitution. The court sought to show that the primary purpose of the revised order was not secular by citing several of President Trump’s remarks regarding radical Islamic terrorism. This line of reasoning is troublesome for a few reasons.

First, while some of the remarks were overboard and vacuous — including campaign comments that the United States should enact a Muslim ban — several of the comments the court cited were made prior to Mr. Trump’s inauguration. Even if Trump harbors an unfounded prejudice toward Islam, it was not evident in official executive action, as neither of his administration’s executive orders prohibited entry to the United States on the basis of religion.

Second, the statements the court referenced contained plain truths that were evidently overlooked, ignored or refuted without written explanation. For example, the court cites this comment Trump made while on the campaign trail in reference to radical Islamic terrorism: “But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States . . . and of people that are not Muslim.”

It’s unclear why the court believes this statement is problematic. American immigration policy has long sought to prevent those who adhere to dangerous anti-American ideologies from entering the country. Members of terrorist organizations do not possess constitutional privileges under the First Amendment simply because their anti-American ideology happens to be fundamentally religious (obviously this is not to say that Islam itself is anti-American, but rather that its radical adherents believe it is their religious duty to wage war against non-Muslims).

Additionally, the line of reasoning that implies that Judge Watson is within his rights to halt the implementation of this executive order — on the basis that he believes Trump’s primary motivation for signing this immigration order was his shallow loathing of Muslims generally — could be applied more liberally.

Could not a citizen or state sue to prevent war against an Islamic terrorist organization? What about a military raid in a predominantly Muslim nation? Trump has expressed disdain for the radical elements of Islam, and, some believe, Islam as a whole. When does he have America’s safety in mind, and when is he using the military as a cover to discriminate against Muslims? Allowing executive action to be challenged based on motivation is a slippery slope.

To be sure, the issue at hand has less to do with hypothetical extrema and more to do with the constitutional balance of power throughout the government. The court’s use of a political candidate’s comments — perceived to be infused with baseless animosity toward a religion — as partial justification for halting the enactment of an executive order is a worrisome arrogation of power by the judiciary.

Judges should not possess the power to both subjectively interpret the Constitution, and to abrogate or restrain legally sound legislation based on its differentiation with their personal attitudes regarding what the Constitution does and does not permit. The American governmental structure devised by the Founders did not grant the courts — and they alone — the ability to determine constitutionality. Congress should exercise its Article 1 powers to limit the jurisdiction of district courts, their power of judicial review, or both.