As I begin writing this, it has been about three hours since Hawaii’s US district judge Derrick K. Watson issued a nationwide temporary block to the revised travel ban that was due to be implemented at midnight. A few key quotes from Judge Watson explain his decision:
- Based upon the current record available, however, the Court cannot find the actions taken during the interval between revoked Executive Order No. 13,769 and the new Executive Order to be ‘genuine changes in constitutionally significant conditions’.
- The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.
- Because a reasonable, objective observer – enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance – would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.
The judge also considered Trump’s own words and those of his advisors in determining the constitutionality of the ban:
- The day after signing the first Executive Order [No. 13,769], President Trump’s advisor, Rudolph Giuliani, explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
- In an interview on January 25, 2017, Mr. Trump discussed his plans to implement “extreme vetting” of people seeking entry into the United States. He remarked: “[N]o, it’s not the Muslim ban. But it’s countries that have tremendous terror. . . . [I]t’s countries that people are going to come in and cause us tremendous problems.”
- When signing the first Executive Order [No. 13,769], President Trump read the title, looked up, and said: “We all know what that means.” President Trump said he was “establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America,” and that: “We don’t want them here.”
- The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts”. The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
Perhaps Trump’s hateful rhetoric is coming back to bite him in the posterior?
When Trump learned of the judge’s decision, he was just about to begin speaking at a rally in Nashville, Tennessee (the man already won the election … why is he still holding rallies???). He had this to say to his supporters at the rally:
“I issued an executive order. But let me give you the bad news. We don’t like bad news … I’ll turn it into good. But let me give you the bad, the sad news. Moments ago I learned that a district judge in Hawaii, part of the much overturned ninth circuit court – and I have to be nice, otherwise I’ll be criticised for speaking poorly about our courts [he indicates the media here] … I would never want to do that. A judge has just blocked our executive order on travel and refugees coming into our country from certain countries. The order he blocked was a watered-down version of the first order that was also blocked by another judge and that should never have been blocked to start with … This is, in the opinion of many, an unprecedented judicial overreach.
You don’t think this was done by a judge for political reasons, do you, no? This makes us look weak … Just look at our borders. We’re going to fight this terrible ruling. We’re going to take this as far as we need to, right up to the supreme court. We’re going to win. We’re going to keep our people safe. I think we ought to go back to the first one [executive order] and go all the way … We’re gonna win it, we’re gonna win it. The best way to keep foreign terrorists – or as some would say, radical Islamic terrorists – the best way to stop them is to keep them from entering our country in the first place.”
It is reported that during the rally, the crowd was chanting, “Lock her up!”. What the heck? The judge that Trump was railing against is a man, Hillary Clinton is not an issue … so who the heck did they want to lock up???
Hawaii’s attorney general, Doug Chin, said he had no option but to challenge the US president’s latest travel ban because it “takes us back half a century”.
In news from the other side of the globe, populist candidate Geert Wilders’ party has been defeated in the elections in the Netherlands. The incumbent, Dutch prime minister, Mark Rutte, and his liberal VVD party appear to have comfortably beaten the anti-Islam Freedom party of Geert Wilders to become the largest in the new parliament. Dutch politics being the confusing creature it is, I will not delve into the multi-party system that I do not fully understand, despite much reading (I will be asking my friend, Choosing, for some assistance here). Suffice it to say that this is the 2nd blow to the populist movement in Europe in a four-month period, starting with Norbert Hofer losing the Austrian election in December.
I am pleased by the results in the Netherlands for two reasons. The first is that Wilders ia very similar to Donald Trump in many ways, most notably his anti-Islamic stance, and has even been frequently referred to as the “Dutch Donald Trump”. He had called on the EU to ban immigration by Muslims, and last year was on trial for the second time for inciting hatred against the Dutch Moroccan minority. The second reason his loss pleases me is that I believe it is a sign that Europeans are taking a more moderate stance these days, and with elections coming up in France next month, and Germany in September, both of which have a far-right populist candidate, it may be that those elections, also, will result in a less drastic result than was earlier anticipated.
EU commission president Jean-Claude Juncker called the election results “A vote for Europe, a vote against extremists.” And Prime Minister Rutte said, “Our message to the Netherlands – that we will hold our course, and keep this country safe, stable and prosperous, got through.”
Wilders did not go down quietly, vowing to continue his fight, saying that his fierce message had resonated with Dutch voters and that he would prevail as the victor of the next elections. “We’ll have to wait for the next time to make this happen. I guarantee you, this patriotic spring will start. It has already started.”
Today will, no doubt, bring news on both Trump’s travel ban and the Dutch elections, but for the moment, I have told you all I know, so it is time for me to turn my attention elsewhere. Have a happy Thursday, dear readers!