When Hawaii and Maryland federal judges last week blocked President Donald Trump’s second attempt at a travel ban affecting many visitors from Middle East nations, the president called it an act of "unprecedented judicial overreach.”
It wasn’t. In fact, the Hawaii decision was based partly on a Texas judge’s ruling just two years ago. And it was a ruling that Trump — if he was aware of it — would have celebrated.
The earlier ruling was issued by Brownsville Federal Judge Andrew Hanen. It dealt with, of all things, a president’s power when it comes to immigration.
Barack Obama had issued a presidential order allowing a three-year reprieve and work permits for more than four million undocumented parents of U.S. citizens, if they had committed no crimes. It was, in effect, an extension of his earlier order that granted protected status to “dreamers,” undocumented young people who had been brought to the United States at an early age by their parents.
Republicans were angered by the order and Texas joined 25 other states in suing to block it. The coalition didn’t file the suit in Brownsville by accident. Judge Hanen is a conservative judge appointed by the second President Bush.
Hanen had described illegal immigration as a biblical flood that "endangers America" and is "an open invitation to the most dangerous criminals in society."
Not quite Trumpian rhetoric, but on the spectrum.
Hanen’s ruling served as precedent for Hawaii Federal District Judge Derrick Watson in two ways. The first had to do with whether Hawaii had “standing” to sue. The legal concept is that one cannot file a lawsuit unless one can show that he or she has been harmed. Lawyers for Hawaii mentioned, among other things, that the ban would hurt their tourism industry. Conservative critics scoffed at that as thin gruel in the face of the threat of terrorism.
But in the Texas case, Judge Hanen ruled that the state had standing because it would incur expenses by having to issue driver’s licenses to the new — at least temporarily — legal residents. That seemed like thin gruel to liberal critics at the time.
An even more controversial issue — at least in legal circles — is the use by the Hawaii and Maryland federal judges of public statements by President Trump and others in deciding whether the purpose of Trump’s travel decree was to discriminate against Muslims. That would be unconstitutional.
During his campaign, Trump famously issued a press release calling for “a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.” He repeated the notion numerous times on the campaign trail. His first travel ban was struck down partly because it included a reference to exceptions for religious minorities from the designated Muslim countries.
Conservative legal experts argue that judges should base their decisions solely on the text of the law. But others argue that when the motives of the law are questionable, statements by those who make the law are fair game. Both Hawaii’s Judge Watson and Maryland’s Judge Theodore Chuang took the latter approach.
Once again, these judges were provided a precedent by Texan Judge Hanen. In that case, Justice Department lawyers argued that Obama’s directive was offering guidance while allowing for case-by-case exceptions to immigration enforcement personnel. The actual words of the order repeated this several times. But the judge cited statements by Obama at a town hall sponsored by Spanish-Language network Telemundo.
“There are going to be some jurisdictions, and there may be individual ICE officials or Border Patrol who aren’t paying attention to our new directives,” Obama said. “But they’re going to be answerable to the head of the Department of Homeland Security, because he’s been very clear about what our priorities should be.”
So there you have it. It may or may not be right for judges to look to political rhetoric when ruling on laws, but the precedent is clear: The practice has been used to outrage both sides of the immigration debate.