In this segment, Rush echoes many of my points about the dangers of judges attempting to read the President’s mind, and anoint him with a forever taint of bigotry.
So a lot of people are wondering, people who don’t follow these things and to whom legal maneuverings are also of a foreign language, why does this keep happening? As he attempts to freeze immigration from refugees and immigrants from predominantly Islamic countries, why does this keep happening? When the federal courts, local courts, they’re federal district courts, in this case in Hawaii and Maryland, the judges said that the record of statements by the president and his advisers mean that, in their view, the real purpose of the executive order is to discriminate against Muslims, and that violates the Constitution’s ban on favoring or disfavoring an election. Establishment clause of the First Amendment.
The only problem with this is, it is completely illegal and totally against all judicial practice to decide on the merits of a law or executive order based on what you think the author’s motivations are. And this conclusion — you know, I read a piece here by a guy named Josh Blackman at a website called Lawfare, which I find myself consulting more and more.
He said, “This conclusion will infect every establishment clause challenge ever brought against the president concerning Islam. Perhaps the president’s decision to use military force against a predominantly Muslim nation could violate the establishment clause. In other words, nothing Trump can do would ever eliminate that taint.” So his problem here is that if America’s courts are now holding that congressional action in areas of enumerated, exclusive authority, meaning the statute that allows Trump unilaterally and by proclamation to issue this ban, if America’s courts are holding that that authority is subject to noncitizens being given the rights of our constitution, then judicial review will have been extended to absolutely everything up to and including the decision to declare war.
Imagine that if Trump decides to send, let’s say to Yemen, on a military action and some leftist goes back to this Hawaii judge or any other favorable liberal judge and says, “Trump can’t do this because he’s a bigot. Trump said during the campaign he didn’t want Muslims coming into the country. He’s prejudiced, he’s biased against Muslims and this constitutes murder,” and the judge would say, “We think that’s right,” and the president therefore can’t send troops.