Thursday, March 16, 2017

Court blocks Trump's revised travel restrictions

How quickly events unfold! How many happenings, on this one day, merit comment and deserve analysis?
We cannot discuss all five; there isn't time. However, the first four will be competently blogged elsewhere, so let us examine the last, the judge's new restraining order as linked above. (For reference, here is the president's executive act, which had been set to take effect at 12:01 a.m. Eastern Daylight Time this morning but which the court has blocked.)

A Hawaiian Muslim, indeed an imam, one Dr. Ismail Elshikh, is one of the two plaintiffs.
Dr. Elshikh’s wife is of Syrian descent, and their young children are American citizens. Dr. Elshikh and his family are Muslim.... His mother-in-law, also Muslim, is a Syrian national without a visa, who last visited the family in Hawaii in 2005.... In September 2015, Dr. Elshikh’s wife filed an I-130 Petition for Alien Relative on behalf of her mother.... Dr. Elshikh fears that although she has made progress toward obtaining a visa, his mother-in-law will be unable to enter the country if the new Executive Order is implemented....
One gets the impression that the court's tender concern for the dignity and interests of Dr. Elshikh would hardly be extended (in these or other circumstances) to the likes of me and thee, but otherwise, the court's finding above seems straightforward enough. The other plaintiff is the State of Hawaii.
Hawaii primarily asserts two proprietary injuries stemming from the Executive Order. First, the State alleges the impacts that the Executive Order will have on the University of Hawaii system, both financial and intangible. The University is an arm of the State.... The University recruits students, permanent faculty, and visiting faculty from the targeted countries....
Yes, I bet it does.
There is also evidence of a financial impact from the Executive Order on the University system.... [T]he University will not be able to collect the tuition that those students would have paid.
If I own a gas station, can I spring some robbers from jail on the ground that, if the robbers stay in jail, I will not be able to collect the fuel-for-the-getaway-car payment that those robbers would have paid?

I am not a lawyer, so maybe that's technically the wrong question, but surely the court's reasoning is strained.

On the other hand, what if it could be shown that the University would collect more in tuition if students from the six countries were not there? Maybe some prospective students would prefer not to be exposed to jihad?
The State argues that the University will also suffer non-monetary losses, including damage to the collaborative exchange of ideas among people of different 19 [sic] religions and national backgrounds on which the State’s educational institutions depend.
I had thought that it were the University of Hawaii, but stand corrected. It is the University of 19 Different Religions and National Backgrounds!
This will impair the University’s ability to recruit and accept the most qualified students and faculty, undermin[ing] its commitment to being “one of the most diverse institutions of higher education” in the world.
The court does not explain the relevance of this commitment as far as I can see, but it does refer to the order issued earlier by a federal district judge in the state of Washington. Perhaps the earlier order explains the relevance of the commitment in question.
The second proprietary injury alleged Hawaii alleges is to the State’s main economic driver: tourism. The State contends that the Executive Order will “have the effect of depressing international travel to and tourism in Hawai‘i,” which “directly harms Hawaii’s businesses and, in turn, the State’s revenue.”
Well, we can't have that. As we all know, the reason so many tourists flock to Hawaii is to watch the burqini-clad Somali girls on the beach. And how boring are hotels in which no bombs ever go off?

Is anyone going to ask actual tour operators what they think of the state's contention?

Hawaii's claims look like losers to me, but then I'm not the judge.

The court's order fairly persuasively finds that Trump's act is disingenuous with regard to its purpose: it is a Muslim ban and probably means to be a Muslim ban, whatever pretty language it might prepend to disguise the fact.
Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” 
The order thus finds that Trump's act probably fails "the three-part test for Establishment Clause claims set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)."
According to Lemon, government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion.
Trump fails point (1), says the court. The Government (that is, Trump) however points out that "the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population...." To this, the court replies:
The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.
The court has a point. After all, jihadis demonstrate their animus toward any group of people without targeting all of them at once.
In March 2016, Mr. Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, “Is there a war between the West and radical Islam, or between the West and Islam itself?” He replied: “It’s very hard to separate. Because you don’t know who’s who.”
The court further notes that, "[i]n that same interview, Mr. Trump stated:"
“But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States. . . [a]nd of people that are not Muslim.”
So, the question is, if a president believes that, can he act on his belief? The court says, no.
Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.
The stakes are high. We'll see what happens.

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