Thursday, March 16, 2017
It's a sad comment on the state of the federal judiciary when a non-lawyer journalist can give a more doctrinally persuasive analysis of the constitutionality of an executive order than can a federal judge. See Mollie Hemingway's analysis (here) of Judge Derrick Watson's opinion granting a TRO against the enforcement of the Trump administration's revised travel ban. Watson purports to apply the Supreme Court's test for Establishment Clause violations set forth in Lemon v. Kurtzman. As Hemingway observes, "[Judge] Watson says [the executive order] fails the first part of the [Lemon] test. Yet the idea that the executive order has no secular purpose is laughably wrong. One can disagree with the executive order or its goals without denying that those goals are secular." Having the self-awareness and the discipline to separate political disagreement with a law from legal critique of the law has, of course, been something that judges have struggled with, especially since the latter half of the twentieth century. Sadly, Watson's opinion does little to restore the public's confidence in the judiciary's comprehension of its vital but limited role in our constitutional order.