Word is spreading.
Fifteen states and the District of Columbia under the signed names of their attorneys general (allegedly supported by this familiar face) have filed an amicus brief alongside Washington and Minnesota's federal lawsuit contesting Donald Trump's Executive Order. The original lawsuit has been upheld in one Washington court and denied in one Massachusetts court. (This opinion piece compares the conduct of the two cases well).
In summary, the Washington court judge enjoined a temporary restraining order against Trump's Executive Order without any argument based on the relevant statutes. Massachusetts' court did consider the ramifications of statutory law and executive-legislative prerogative in this matter and decided against a temporary restraint.
So naturally, the former judge's brief relies on some rather stunning legal gymnastics.
The first three observations do not offer any valid objections to the order or support the legal cause against it. If they serve any purpose, it is as red herrings and sob stories aimed at reducing what should be a legal issue to an emotional appeal.
The latter two objections raise the central problems projected by these states, claiming that the order violates the Establishment Clause and inflicts "irreparable harm" on the amici states and further arrogates their legal prerogatives.
However, the amici in the case are not so circumspect as to provide evidence of the violation. They claim a priori that a violation has occurred and argue instead that the alleged violation inflicts irreparable harm on them. Nonetheless, the argument could only take a few directions and maintain any validity.
The Establishment Clause uses very precise language regarding the relationship between the federal government and religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" What does it mean to "establish[]" a religion? At the time, Colonists knew of only one established religion, the Anglican Church, which received tax revenue from Parliament and was under the control of the political head of the nation, the king. The Continental Congress realized that such a union of religion and state policy would have disastrous consequences not unlike the persecutions and wars that ravaged England barely a century earlier; so, they cut all ties between the state and an officially funded, politically managed religion.
More recently, however, "establishment" has been colloquially reinterpreted as "endorsement" or "preference", and bans on praying in public schools and bible reading for example have swiftly followed with "protected" satanic clubs hard on their heels. A much vaguer term, "endorsement" allows for a broader swath of contrary actions such as simultaneously demand protection of Muslims and disenfranchisement of Christians.
Accepting that the advocates of this lawsuit have no claim that Trump has "established" a religion in the strict (and therefore only proper) sense, one must assume that they instead claim he has in some way "endorsed" one religion over another. Several relevant paragraphs of the order are referenced as proof of the order's anti-Muslim bent:
1) Sec. 1, par. 3 refers to "hostile attitudes" and "violent ideologies" that should not be allowed to enter into the United States. It further references "honor killings" and other rights violations that should not be countenanced;
2) Sec. 5(b) directs the Secretary of State to "prioritize refugee claims made by
individuals on the basis of religious-based persecution, provided that the
religion of the individual is a minority religion in the individual's country
of nationality". Of course, in the seven targeted countries, Islam is the majority religion;
3) Sec. 5(c) specifically denies entry to Syrian refugees "until such time as...sufficient changes have been made...to ensure that admission...is consistent with the national interest[]"; and
4) Sec 5(d) restricts the entry numbers of refugees in general to 50,000 until such entries are deemed in accord with the "national interest."
Now unless the litigants want to argue that Islam is the only religion with "hostile attitudes" and "violent ideologies", that it is the only religion that could ever endorse "honor killings" and other rights violations, that Christians and other non-Islamic religions are not being actively targeted in Islamic countries and that Syria is not an active war zone endangered by the Islamic fundamentalists known as ISIS, they have no grounds to suppose that the order singles out Muslims for scrutiny because of their religious beliefs.
If, on the other hand, as presented in another amicus brief filed by law professors across the nation, the executive order violates 8 U.S.C. 1152 (a)1(A) which forbids preference or discrimination based on "race, sex, nationality, place of birth or place of residence", then it remains to be seen what is illegal about preference or discrimination based solely upon religion or political persecution. This becomes even more problematic if, as this brief claims, 8 U.S.C. 1152 (a)1(A) supersedes the presidential prerogative provided in 8 U.S.C. 1182 (f) [see pg. 10-11 (35-36/62)] as Trump would have been restricted by law to consider religion or political affiliation as the only legal bases upon which to enforce his immigration ban. A Muslim ban it should have been then!
Why assume that 8 U.S.C. 1152 (a)1(A) supersedes 8 U.S.C. 1182 (f)? Why assume that because a statute was passed after another related statute that the latter repeals the former or even amends it? Statutory laws are repealed, revised or amended specifically by other statutes, or they are proven to be at variance with the Constitution through judicial review. 8 U.S.C. 1152 (a)1(A) makes no mention of 8 U.S.C. 1182 (f) and as such leaves the preceding powers intact. The broad language of 8 U.S.C. 1182 (f) is not used by accident; it implies high levels of power and discretion in the President's hands and his alone. To limit the preference or discrimination in one place while leaving intact the power to discriminate against "all alien or any class of alien" flies in the face of reason.
Even the brief filed by the "Constitutional scholars" cannot avoid the fact that "every President over the last 30 years has issued at least one Executive Order pursuant to 8 U.S.C. 1182 (f) and that many of those order excluded aliens on the basis of nationality"; however, these scholars attempt to justify their objection by observing that those orders were "not categorical exclusions of broad classes deemed to pose a risk" but restricted "individuals that had engaged in culpable conduct". [See pg. 6 (12/25)]
False. False. False.
Honestly, the Left should be ashamed of their own proponents and their own arguments. They play the Constitution as if it were a chip in their game, when they could make far more headway by openly disowning the Constitution instead. Perhaps they have not noticed that those who take hard stances on the core issues have more clout than those that take coy stances on the hard issues.
What is next? Will a court expound the illegality of Trump's order based on a survey of international law and practices and opinions of the international community? Before they attempt it, I shall provide arguments against such juris-impudence in the next installment.
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