On March 29, 2017, Federal Court Judge Derrick Watson extended his nationwide “Temporary Restraining Order” (TRO) on the Trump Travel Ban. After hearing the merits of the case, he turned the TRO into a Preliminary Injunction, lasting until the Travel Ban could be litigated.
For those with little knowledge or experience in the legal arena, I thought that it would be a good idea to offer some background information on the subject for better ability to understand what happened.
Temporary Restraining Order Hearing
When a lawsuit is filed with a court, it is in the form of a Complaint that cites the facts of the case and the allegations being made against the opposing party. Often, the reason for the Complaint is to stop actions that may “harm” the person or people filing the Complaint. The Trump Travel Ban Executive Order is a good example of this type of action.
After filing the lawsuit, it is common for the Plaintiff to request a Temporary Restraining Order to stop the Defendant from taking actions covered in the Complaint. (In this case, stopping Refugees from entering the US.)
When the TRO is requested, there is usually an immediate “Ex-Parte” Hearing in front of the judge citing the reasons for the TRO. (Ex-Parte means that the Defendant is not at the hearing.) The judge rules whether there is potential harm possible to the Plaintiff, and if there is, the judge issues the TRO stopping the practice. This was what Federal Judge Derrick Watson did initially in the Travel Ban case.
Preliminary Injunction Hearing
After the TRO is issued, a hearing is scheduled to discuss the merits of the case. At this time, the Defendant will present reasons why their actions are warranted, and why the TRO should be “dissolved” so that the practice can continue.
The judge hears both sides of the argument. He decides in his “opinion” whether the Plaintiff has a high likelihood of success based upon the merits of the case, and whether the Plaintiff will be irreparably harmed if the TRO is dissolved. If so, a Preliminary Injunction is placed into effect until additional court hearings and litigation occurs.
If a party has shown only a limited probability of success, but has raised substantial and difficult questions worthy of additional inquiry, a court will grant a Preliminary Injunction only if the harm to him or her outweighs the injury to others if the injunction is denied.
The Preliminary Injunction serves to prevent the Defendant from acting until a trial occurs and a decision is reached by the court on the validity of the action.
Judge Watson’s Ruling
Watson’s ruling in Hawaii v Trump is more disconcerting than portrayed by even pro Trump judges. It sets a dangerous new precedent in Judicial Powers.
The President, under the National Immigration Act, has the power to bar any class of aliens, both as immigrants and non-immigrants. He may bar them for any reason he wishes, or for no reason. Watson ignores this power of the Presidency.
Watson claimed in his ruling that Trump violated the law for banning Muslims due to their religion and this was religious discrimination which is prohibited by the Bill of Rights. But Watson fails here also. He ignores that the Rights guaranteed in the Constitution and Bill of Rights belong ONLY to Americans. Non-Americans have no such rights. As evidence of this:
- Cases of Due Process violations under the 5th Amendment are refused if brought by foreign nationals.
- The NSA need not consider the 4th Amendment when intercepting foreign communications.
Watson’s ruling presupposes that he can read Trump’s mind from previous statements made during the Presidential Campaign. He interprets that Trump is against all Muslims, even those here lawfully. So he arrives at the Religious Discrimination wrongly.
Even worse when considering the TRO, Watson finds that unless the TRO is granted, those affected will experience irreparable harm for not being let into the US. What harm will they suffer? The ability to collect welfare? This is another failed reason.
Watson also finds that there is a “high likelihood” that the Plaintiff will “prevail” on the merits of the case. He does find this by ignoring established law regarding the powers of the President and also that foreign nationals are not granted the rights established in the Constitution and Bill of Rights.
What Watson does by this ruling is to give the Rights guaranteed by the Constitution and Bill of Rights to all the people of the world. He has “globalized” American Rights.
Finally, he has done something totally inconceivable. Watson has asserted a “new judicial power” for the Courts. That is a Court may ignore formal law and ignore Presidential Power on a whim. No longer is the Judicial Branch an equal branch of government. It becomes the Supreme Law of the land.