3/17/2017 - David Limbaugh Townhall.com
Anyone who understands the modern left could not be shocked by U.S. District
Judge Derrick Watson's issuance of a temporary restraining order against
President Donald Trump's executively invoked travel ban -- but that doesn't
make the order any less outrageous.
The ruling
was not just an exercise in judicial tyranny, as many have commented, but an
act of jurisprudential nihilism and anarchy. Courts are not policymaking bodies
but judicial tribunals that decide actual disputes on the basis of the facts
and the law.
For
decades, the courts have arrogated to themselves the power to act outside their
constitutional authority by usurping the legislative function of writing and
rewriting, rather than interpreting, laws and adjudicating their
constitutionality.
Judicial
activism overwhelmingly comes from left-wing judges, many of whom see their
role as advancing a progressive policy agenda and exhibit little respect for
the Constitution and rule of law when they might interfere with that agenda.
When
President Trump issued his original travel ban, it was wholly predictable that
some court would attempt to nullify it. In that case, its job was made easier
by the arguable clumsiness of the rollout, even though most honest commentators
believed that the underlying order passed constitutional muster.
Phony
critics pretended the ban was stricken only because it was illegally crafted
and opined that had Trump used greater care in composing the order, he would
have faced no judicial obstacles. Others recognized this as a convenient excuse
and said Trump would not be able to circumvent judicial obstruction merely by
drafting a more precise order.
Alas, when
the president issued a new order, it suffered the same fate as the first. Once
a plaintiff was recruited for the cause, it wasn't hard to find a court to
eradicate Trump Travel Ban 2.0.
What was
less predictable, though, was the transparent speciousness of the court's
reasoning in striking down Trump's lawful order. A self-respecting judge would
be embarrassed by this sophistry, unless he derived his professional
self-concept from his devotion to political causes through bastardization of
his sworn judicial oath.
Chief
Justice John Marshall, in establishing the judiciary's prerogative of judicial
review in the 1803 case Marbury v. Madison, said, "It is emphatically the
province and duty of the judicial department to say what the law is." He
did not say, "The judiciary is superior to the legislative and executive
branches, and accordingly, we have the right to just make stuff up."
Yet that's
precisely what Judge Watson did. He issued the temporary restraining order
mainly because the executive order purportedly violated the establishment
clause, which Watson reduced to this formulation: "The clearest command of
the Establishment Clause is that one religious denomination cannot be
officially preferred over another." But even Watson admitted it is
undisputed that the order "does not facially discriminate for or against
any particular religion, or for or against religion versus non-religion."
So it's not Trump's executive order that arguably violates the establishment
clause; it's his alleged intent behind the order, which Trump supposedly
revealed in his statements during the presidential campaign and otherwise
concerning Muslims.
The judge
says that to determine whether the order violates this clause, a court must
apply the three-part "Lemon test." To show it has not run afoul of
the clause, the government action must satisfy all three prongs of the test: 1)
It must have a primary secular purpose. 2) It may not have the principal effect
of advancing or inhibiting religion. 3) It may not foster excessive
entanglement with religion.
Watson
concluded that the order fails the first test -- the "secular
purpose" prong -- so a court wouldn't even have to consider the other two
tests. But it is painfully obvious that the primary purpose of Trump's
executive order is secular; he has exercised his sovereign duty to protect
Americans and America's national security interests. It is laughable and
outrageous to suggest there was any other purpose -- much less a religiously
discriminatory purpose -- to invoke the order.
On Page 32
of his 43-page screed, Watson cited the 9th U.S. Circuit Court of Appeals'
ruling that "official action that targets religious conduct for
distinctive treatment cannot be shielded by mere compliance with the
requirement of facial neutrality."
But nothing
in the order targets religious conduct for distinctive treatment! The order
doesn't address any aspect of Muslim religious conduct, unless Watson was
arguing that terrorism is protected religious conduct. The ban applies to just
six nations whose entrants are believed to present a higher risk of harm to the
United States. This is not about religion but about national security. The five
pillars of Islam are wholly unthreatened by Trump's order.
Particularly
disingenuous was Watson's statement, on Page 36, that "any reasonable,
objective observer would conclude ... that the stated secular purpose of the
Executive Order is, at the very least, 'secondary to a religious objective' of
temporarily suspending the entry of Muslims." This is astonishing, even
for a radical jurist. No reasonable person -- apart from a mixed-up,
virtue-signaling leftist -- would conclude that the stated secular purpose is
secondary. If you're going to consider Trump's statements, he is nothing if not
a national security hawk. Moreover, Americans who voted for him based on
national security concerns see this order as a national security imperative.
They know, even if pointy-headed leftist judges do not, that presidents have a duty
to protect the United States and that the greatest threat to its national
security presently is from terrorists. I repeat: There is no religious
objective to this order at all, much less a primary one. It doesn't apply just
to Muslims, and it doesn't "target religious conduct" of Muslims.
On top of
all this, Watson conceded that to issue the temporary restraining order, he had
to determine that the plaintiffs had met their burden of establishing a strong
likelihood of success on the merits of their claim, yet he never explained how
there is a small likelihood, much less a strong likelihood, of success,
especially considering that this would be, according to liberal Harvard law
professor Alan Dershowitz, a case of first impression.
The judge
has written 43 pages of words -- just words -- designed to obfuscate the issue
and justify the unjustifiable judicial usurpation of the sovereign power of the
executive branch over national security.
This will
not stand. Watson's order cannot stand.
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