A Federal judge in Hawaii has proven me wrong.
In my review of the updated immigration executive order (aka “travel ban”), I guessed the revised order would pass legal muster. Last night (March 15, 2017) Judge Derrick K. Watson, of the Federal District Court in Honolulu, blocked implementation of two key parts (Sections 2 and 6) of the order nation wide. Subsequently, another judge (Judge Theodore D. Chuang, of the Maryland District) issued a similar ruling.
How could I be so wrong? The simple (desperately trying not to be defensive) answer is I am not a lawyer and it is now even more clear I don’t know what I’m talking about when it comes to legal issues. Somehow, I don’t think that will keep me from expressing my own opinions in the future, however. [grin]
[Ed. note: A savvy reader might take the previous paragraph as a less than subtle “Reader Beware” warning.]
Following this case I have learned an important and fascinating lesson about the law and how it is interpreted. Previously, I did not fully understand how judges could use more than the official text of an executive order (or law for that matter) to determine whether or not it is constitutional. Obviously, Judge Watson used many other comments, documents, etc. by the president and his surrogates to conclude the primary purpose of the order was to discriminate against a particular religion. In hindsight, I can now see that I completely missed this aspect of the rulings on the original “travel ban” order. This time around, the concept of including other documents in determining intent is much more obvious.
It is actually very good to know that extended context matters with respect to interpreting the law.
Since both of the judges issued temporary restraining orders not final orders, the legal battles over the “travel band” executive order are far from over. I’ll be following them every step of the way.
For anyone interested in the details, here is the full text of the Watson ruling as published by the New York Times. Fair warning: it is lengthy.
Because the immigration executive order remains so prominently in the news, I’ve decided to follow the legal proceedings related to the order. A three judge panel of the 9th Circuit Court has now ruled on the case for removing the stay order issued by the Washington District court.
The 29-page order is one of the most readable court opinions I have read. It appears to me the judges made a concerted effort to write this order in as much common language as possible. I’m guessing one reason for that is they are well aware that many members of the general public are likely to be reading the full order itself and not just summary reports of it.
Not only is it reasonably accessible for non-legal experts, it is particularly strong in its rejection of all the significant arguments of the government and support of the arguments of the states. In some cases, the language seems to almost ridicule the weakness of the government’s arguments. I can’t help but think the work of the Justice Department was not its best due to so many experienced people no longer being present in the department.
Obviously, this court ruling is limited to the question of whether or not the stay issued by the Federal District Court of Western Washington should be lifted. The order is quite clear it is not deciding the case itself, but does see the states’ case as likely to succeed and the governments case is unlikely to succeed.
I fully agree with this ruling and hope ultimately the executive order is diminished so much that it is ineffective.
At this point, it remains to be seen whether or not the government will petition the full 9th Circuit Court (en banc) or the Supreme Court. If a petition is submitted to either, there is no guarantee that court will accept the case. Choosing not to appeal would mean returning to the District Court to present arguments, evidence, etc.
We have a long way to go on this issue before it is finally resolved.
A less egotistical president would simply withdraw the executive order and issue a new one that is much more carefully worded and vetted. I don’t recommend we hold our breath waiting for that to happen, however.