US: reckless judicial activism derails rule of law

There are many reasons to doubt the wisdom of President Trump’s decree restricting immigration from a number of predominantly Muslim countries – both in its initial version of end January and in its revised version. However, the decisions issued by Federal Judges in Hawaii and Maryland yesterday to block the revised decree from coming into force say more about those judges than about the decree. And they undermine the judiciary branch’s credibility  rather than the President’s. 

As the New York Times (as usual on such occasions, gleefully rather than neutrally) reports:

A federal judge in Hawaii issued a nationwide order Wednesday evening blocking President Trump’s ban on travel from parts of the Muslim world, dealing a stinging blow to the White House and signaling that Mr. Trump will have to account in court for his heated rhetoric about Islam.

A second federal judge in Maryland ruled against Mr. Trump overnight, with a separate order forbidding the core provision of the travel ban from going into effect.

The rulings were a second major setback for Mr. Trump in his pursuit of a policy that he has trumpeted as critical for national security. His first attempt to sharply limit travel from a handful of predominantly Muslim countries ended in a courtroom fiasco last month, when a federal court in Seattle halted it.

Mr. Trump issued a new and narrower travel ban, affecting six countries, on March 6, trying to satisfy the courts by removing some of the most contentious elements of the original version.

But in a pointed decision that repeatedly invoked Mr. Trump’s public comments, Judge Derrick K. Watson, of Federal District Court in Honolulu, wrote that a “reasonable, objective observer” would view even the new order as “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.”

In Maryland, Judge Theodore D. Chuang echoed that conclusion hours later, ruling in a case brought by nonprofit groups that work with refugees and immigrants, that the likely purpose of the executive order was “the effectuation of the proposed Muslim ban” that Mr. Trump pledged to enact as a presidential candidate.

This kind of reasoning seems unfitting for any judge respecting the dignity and purpose of his office. The judge’s role is to find any inconsistencies with the decree and higher-ranking legal provisions. He must, for this purpose, interpret the wording of the decree as it has been issued, but he must not base his decision on mere speculations regarding the purposes that may have driven the person responsible for it.

The reasoning of the Hawaii judge is self defeating. He finds the reasons for cancelling the decree not within the decree itself, but outside, in the anti-Muslim rhethoric used by Trump during his presidential campaign. The decree itself, it seems isn’t the problem – it is the President whp made it.

We must conclude that the same decree, if issued by another President (Obama?) would be ok. Likewise, if the essentialy same decree targeted not predominantly Christian, and not Muslim, countries, there also would be no problem.

This is patently absurd.

While the judge claims that the decree was driven by anti-Muslim animus, one could with equal right suspect that his own decision is driven by anti-Trump animus. Indeed,it suffices to notice that not only the list of countries affected by the ban does not include the five biggest Muslim countries (Indonesia, Pakistan, Bangladesh, Egypt, Turkey), but that the original version of this list was actually drawn up by the Obama administration. In the revised version of Trump’s decree, Iraq has been withdrawn from the list.

Would the judge’s decision have been the same if the decree had been issued by Obama, and not Trump? There is every reason to doubt it. One might thus suspect that the decision was “issued with a purpose of disfavouring a particular US President, despite its stated politically neutral purpose”.

As said above, we have no particular reason for sympathizing with the controversial travel ban. But the issue of the ban itself is increasingly irrelevant. What is a real reason for concern is that the US seem to be approaching a situation of an undeclared civil war, in which judges willingly and knowingly abuse their powers in order to throw sticks between wheels of a government they do not sympathize with. This risks becoming dangerous – even for a country that cannot be defeated from outside.