Immigrants On The Precipice Of The Rule Of Law

A government of laws, and not of men.

–- John Adams, Novanglus Essays, No. 7

Not the most emotional of sentiments, but one that should matter more to criminal defense lawyers than others, as we represent those most hated by society. If it was enough that our clients were despised, accused of horrible things, convicted with the certainty of the righteous who care nothing of evidence and constitutional rights, they would string them up on the nearest tree. But we rely on a government of laws, even though everyone hates them, to give them the opportunity to test their guilt.

District of Hawaii Judge Derrick Watson issued a nationwide restraining order on the second iteration of Trump’s Executive Order. As Cristian Farias explains:

U.S. District Judge Derrick Watson said sections of the new travel order likely amounted to a violation of the First Amendment’s establishment clause, which forbids the government from disfavoring certain religions over others.

Watson gave short shrift to the Trump administration’s argument that the new restrictions applied to a “small fraction” of the world’s 50 predominantly Muslim nations ― and thus could not be read to discriminate Muslims specifically.

Judge Watson not only rejected the government’s argument, but did so in spectacular manner.

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 declines to relegate its Establishment Clause analysis to a purely mathematical exercise.

In other words, Judge Watson called bullshit on the government’s attempt to circumvent its earlier pronouncements that this was a “Muslim ban” by its efforts to argue the numbers. Whether you agree or not, or find Stephen Miller’s astounding ineptitude in taking to the Sunday morning TV shows to smugly tell the world that the new ban was just window dressing, this rulings presents a problem.

Sure, you hate the travel ban. It’s bad policy, panders to the ignorant and serves no useful purpose. And worse, few doubt that Trump’s ban isn’t really a Muslim ban, just as Judge Watson says, even if it’s only a “bad” Muslim ban, if such a distinction can be made. Of course, the terrorists who attacked the United States on 9/11 were radical Muslim, not Bahai, Calvinists or Pastafarians, and some will shrug at this detail. It’s complicated, but there is no argument that we distinguish good and bad people based solely on their religion.

Yet, the admonition of John Adams presents a nagging problem. If we are a government of laws, not men, then the rules don’t change because Donald Trump is president. So he’s an incompetent, dishonest, unprincipled buffoon? And yet, he was elected president. The law as applied to his conduct in office doesn’t change because he so, you know, horrible.

The text of the Executive Order is facially neutral. While Josh Blackman argues that, when it comes to immigration, the law permits discrimination based on religion, we need not go there. Any underlying animus, evil intent on the part of the president or his despicable stand-ins, Rudy Giuliani and Stephen Miller, plays no role in the analysis.

In a dissent to the Ninth Circuit’s refusal to rehear Washington v. Trump en banc, joined by five judges, the point is made:

The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,¹ the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.”

¹ Our personal views are of no consequence. I note this only to emphasize that I have written this dissent to defend an important constitutional principle—that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review—and not to defend the administration’s policy.

The dissenters noted that their personal views are of no consequence for a reason, to emphasize that our is a government of law, not men. The authority given the office of President doesn’t change based on how much you love or hate the man in the White House.

But then, what of such trusted academic as Harvard’s Larry Tribe, who feels no regret spewing his guts against Trump? If no less a respected constitutional scholar as Tribe feels no remorse in forfeiting all pretense intellectual integrity for the end goal of progressive justice, why not you? Jonathan Turley notes that “opposing Trump is the new article of faith for lawyers.”

Attacking or obstructing Trump appears to be an accepted exemption from long-standing rules of legal practice and judgment. It is the legal version of the papal indulgences, which once forgave or reduced the punishment for sins. The legal indulgence appears to allow (and even celebrate) unprofessional acts, when taken in opposition to Trump or his administration. However, legal rules mean little if they become discretionary when they might support Trump. And if legal rules mean little, then lawyers will mean even less in this administration or any administration.

In disgust, too many lawyers, and judges, have created an exception in their minds for Trump, where we abandon our legal reasoning capabilities, latch on to anything we can to argue against anything he does, and find a way to castigate his every move. Even things that would be beyond bizarre under any other circumstances now make sense given Trump Derangement Syndrome:

Bharara is a rebel without a cause. He has no vested interest in this political position even if a promise were made. Yet, he is being again lionized for his highly unprofessional and frankly juvenile demand that he be fired. Harvard Law Professor Laurence Tribe tweeted Bharara “is a hero. His firing was no ordinary turnover.”

On what planet would Tribe call Bharara a “hero” other than the one on which Donald Trump was president? A planet where the ends are all that matter. A planet where law and reason are abandoned in the pursuit of progressive ideology.

This goes to a question that may demand too much of us. Can we maintain a government of law in the face of a president for whom opposition has become an article of faith for lawyers? The precedent created now will haunt us. The precedent isn’t about law, but a man. Once we break down the wall of law and devolve to outcomes based on how much we despise someone, will there be any hope for our defendants?


24 thoughts on “Immigrants On The Precipice Of The Rule Of Law

  1. Lawrence Kaplan

    I hate to say it because I hate Trump, but he was right in calling the decision “judicial overreach.” His referring to it more specifically as “unprecedented judicial overreach” is standard Trump hyperbole.

    1. SHG Post author

      That Trump can’t manage to utter anything that isn’t cringeworthy doesn’t make the other side right.

  2. DaveL

    So, Trump has made his animus against Muslims clear during his campaign, and Judge Watson has decided that’s all that’s required to demonstrate Trump’s order is motivated by that animus, narrowness and facially-neutral justifications notwithstanding. Where does that now leave us? Would Watson hold that Trump is barred from any executive action that adversely affects Muslims on the basis of that animus? Or just those that impose on Muslims more than non-Muslims?

    1. SHG Post author

      That’s a very real dilemma. Do we have an executive who is stripped of plenary authority in perpetuity because of this? Maybe.

        1. SHG Post author

          The time will come when we may need an executive to take action for serious reasons. It may even be this one, god help us.

        2. DaveL

          Well, we’re currently engaged in a military campaign against the Islamic State. Taking away the President’s power to do anything harmful to them, because they’re Muslims and he said bad things about Muslims, seems rather problematic.

          1. Scott Jacobs

            I’ll go one further…

            Does this mean that, because the President said some Double Plus Ungood things about Muslims that he’s not able to deny any Muslim applicant a pardon? Is he required to grant all of them, because to do so would be acting on his animus?

            This ruling is a festering pile of “we don’t like Trump so we’re going to make shit up” and frankly I’m a little shocked they aren’t even trying to hide it now.

  3. Jacob G

    Our republic has existed for nigh on 250 years. There’s little reason to think it can’t survive a Trump presidency. America has survived a civil war and many inept presidents. America helped rebuild the world after WWII (whether that be for good or ill is for y’all to decide), and saw the rise and fall of Communism. Donald Trump isn’t going to destroy the republic. He is not a fundamentally evil man, nor is he the most inept president we’ve had (Millard Fillmore, Buchanan, Hoover, Wilson etc.).
    Undoubtedly, our republic cannot endure in perpetuity however, the Visigoths are never responsible for the destruction of Rome. Rome is the harbinger of Rome’s destruction. So long as the typical American can find genuine love and understanding of those whose opinions differ, there is little doubt in my mind that America will endure. If, however, individual morality (based largely on Judeo-Christian beliefs in this country) continues to decline and individuals become increasingly decisive, then it is not a question of “if” but “when” America will crumble.
    It’s my opinion that most people are fundamentally good, moral, upstanding individuals. I don’t think maintaining a government of law is going to be an issue in the age of Trump. Opposing everything Trump says or does may be fashionable, but then fashions change frequently. It is inevitable that you get the religious adherents who do nothing but predict ruin at every utterance of the current president (Bush and Obama are brilliant illustrations of my point), and they may be loud but they’re relatively few in number. Most people are just out there living their lives and not much changes one president to the next. Our system might be poorly oiled, but it still keeps running. The real trick is going to be fixing the broken parts of the machine without breaking anything else.
    Law is king, the king is not law. That little phrase has been in our blood for 500 years, since the Magna Carta. It’ll take more than Donald J. Trump to undo it.

    1. SHG Post author

      You may not be aware of this, but this is my soapbox, not yours (not that I disagree with most of what you’ve written). If you have this burning need to get your views out there, start your own blog.

      Except the Millard Fillmore hate. Stop hating Millard.

      1. Jacob G

        I guess those are rhetorical questions in the concluding paragraph. I’ll try to do better next time.

        Millard Filmore was #NotMyPresident, and you can’t convince me to change my mind.

        1. SHG Post author

          Not exactly rhetorical, but not exactly an invitation for a full stump speech, either. Number 13 is my lucky number.

    2. Mark M.

      I know; but I’m going in….So, how does Wilson merit inclusion into this presidential hall of shame?

  4. Bruce Coulson

    “More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law for my own safety’s sake.”

    Richard Bolt

    Hopefully this is not where we are going as a nation.

    1. Scott Jacobs

      Hopefully this is not where we are going as a nation.

      Sit down. I have something to tell you, and it’s going to make you sad.

  5. Greg D

    “Any underlying animus. . .plays no role in the analysis.” The law isn’t entirely clear on this. Maybe the Supreme Court could do its job and decide this important question, but that’s probably too much to ask.

    1. SHG Post author

      The rules of interpretation don’t change because it’s Trump. The text is benign and well within the plenary authority, as it no longer affects LPRs or visa holders. That’s that.

  6. Lawrence Kaplan

    SHG/ Your last comment concisely sums up your post. Making your point even more clearly than the post itself. Alas, irrefutable.

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