Judges shouldn’t try to be mind readers.
One of the arguments used by Washington state attorneys to convince a Seattle federal judge to issue a temporary restraining order blocking Trump’s ban on travel from certain countries was that the order discriminated against certain religions, and this was proven by statements he made during the campaign.
As Bryon York points out, Washington state attorneys argued “Trump’s order violates the First Amendment because it is ‘intended to disfavor Islam and favor Christianity,’ and violates the Fifth Amendment because it is ‘motivated by animus and a desire to harm a particular group …'”
The argument appears to be that he has ulterior motives. It makes no difference whether he has ulterior motives, if his stated rationale is legitimate under the law. Trump said his reason was to protect the country from potential terrorists, because these visitors, immigrants and refugees have not and probably cannot be vetted properly.
The judge may have had ulterior motives of his own and placed his own assessment of the facts above those of the president.
Judge James Robart asked an attorney defending the Trump ban: “How many arrests have there been of foreign nationals for those seven countries since 9/11?”
The attorney did not know.
“Let me tell you,” replied Robart. “The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone that says: We have to protect the United States from these individuals coming from these countries, and there’s no support for that.”
To which York replies, “Perhaps Robart has been briefed by the intelligence community on conditions in Yemen, Somalia, Libya, and the rest. Perhaps Robart has received the President’s Daily Brief. Perhaps not. In any event, the Justice Department argued — reasonably but not successfully — that it is the president, and not a U.S. District Court judge in the Western District of Washington State, who has the knowledge and the authority to make such decisions.”
Though the law prohibits “discrimination in the issuance of immigrant visas on the basis of race, nationality, place of birth, or place of residence,” not all of those coming to this country are immigrants. Many are coming to visit or work.
York also quoted the fed attorney as saying, “Washington State’s interpretation … would lead to the untenable result that the United States could not suspend entry of nationals of a country with which the United States is at war, which would raise a serious constitutional question about Congress’s ability to restrict the President’s Article II authority to ensure the nation’s security.”
The judge’s ruling that residents of Washington and the state itself would suffer irreparable harm if the foreign citizen entry ban were not lifted was vague to point of base speculation. It could as easily have been argued that the citizens and state would benefit by not being burdened with additional mouths to feed.
Just why does a Seattle judge’s order blocking the ban carry more weight than that of a Boston judge who upheld the ban?
York concludes the law appears to be on Trump’s side but that does not mean the courts will abide by the law.