The 4th Circuit Appellate Court is hearing the Trump administration’s appeal of Hawaii and Maryland Federal trial judges’ preliminary injunctions blocking implementation of the President Donald Trump’s second Executive Order imposing a temporary travel delay of its own on persons from six Middle East nations from entering the United States (with provisions for case-by-case exceptions). Even though Hawaii is in the 9th Circuit and not the 4th, I’m using the Hawaii ruling as my example here since the Maryland ruling is substantially the same, the Hawaii ruling is more readily available, and I’m lazy.
Judge Derrick Watson’s Hawaii ruling can be read here, and from that ruling…[emphasis added]
Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose….
No truly reasonable, objective observer would read any of that into the EO’s stated, religiously-neutral purpose because no truly reasonable, objective observer would go beyond the plain meaning of the words to seek clearer understanding of them unless those words, as present, were unclear. The word here are plainly clear; outside words are less than irrelevant; their importation here is inappropriate. Judges must apply the law (here, the EO) as it is written and not in accordance with their personal moral precepts. To do the latter is a blatant violation of their oaths of office.
To determine whether the Executive Order runs afoul of that command [the Establishment Clause], the Court is guided by the three-part test for Establishment Clause claims set forth in Lemon v Kurtzman….
The applicability of the Lemon test is nonexistent because the Establishment Clause is irrelevant to this case. Aside from the fact that the EO, by design and declaration, has no religion-related purpose, the EO applies solely and strictly to foreign nationals who are outside the US. That means they also are outside the United States’ jurisdiction. That means the Constitution and its tenets and requirements do not apply to those foreign nationals.
For the court to assert that our Constitution reaches beyond our borders, for this court to claim our government has jurisdiction over persons (and by extension, to nations?) outside our borders runs contrary to our nation’s policies, contrary to international law, contrary to the very principles of what it means to be a citizen of a nation—especially for those persons who are citizens of a nation other than our own.
The 4th Circuit should overrule.