'So-called judges' trump Trump - by David Cole, National Legal Director of the ACLU
By David Cole February 10 at 2:20 PM
David Cole is National Legal Director of the ACLU, which has filed several challenges to President Trump’s executive order on refugees.
So much for that “so-called judge.” That was how President Trump dismissively referred to Judge James L. Robart, a George W. Bush appointee, on Feb. 4, a day after Robart issued a nationwide temporary injunction against the president’s executive order barring entry from seven predominantly Muslim countries. Robart’s ruling followed several more limited injunctions issued by federal judges from New York, Massachusetts, Virginia and California. Now, his order has been unanimously affirmed by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, comprising judges appointed by presidents Bush, Carter and Obama. We’ll see whether Trump will condemn the entire judiciary as “so-called,” but thus far they have done their job: to provide a bulwark for liberty in the face of executive overreaching.
The executive order, issued Jan. 27, sought to make good on candidate Trump’s promise to impose a “Muslim ban.” As Rudy Giuiliani told Fox News, the president called Giuliani to ask how he could implement a Muslim ban that would withstand legal challenge. Giuliani recommended that he target not Muslims per se, but countries that happened to be predominantly Muslim. But Trump apparently didn’t get the full message. The day the order issued, Trump appeared on Christian Broadcast News to explain the order was designed to prioritize Christian refugees over Muslim refugees. (A separate provision of the order allows refugees who are members of a “minority” faith in their country to avoid a ban on refugee admissions).
That’s like a governor signing a “voter ID” law and simultaneously holding a news conference to announce that the purpose of the law is to suppress black votes. It admits a blatantly unconstitutional purpose, because, as the 9th Circuit noted, both the establishment clause and the equal protection clause prohibit the government from favoring or disfavoring specific religious denominations.
The executive order violates the principle of denominational neutrality in two ways. First, it is expressly designed to disfavor Muslims and favor Christians. And second, even if one disregarded Trump’s admission of unconstitutional intent, the order creates a wholly arbitrary preference for refugees from “minority” religions over those from “majority” religions - in every country of the world. What possible rationale could there be for such a preference? And implementing it would entangle the government in theological questions about how to define religious groups and when a sect should be treated as a distinct religion. Are Baptists and Catholics and Unitarians three different religions, or one? What about Sunni and Shiite Muslims?
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Is well used!
