By, Zak Fama
Zak can be reached at firstname.lastname@example.org for questions or comments.
Earlier this month, President Trump issued a revised executive order in regards to temporarily suspending travel from 6 terror-rich countries in the Middle East. Derrick Watson, a Federal Judge from Hawaii, and Theodore Chuang, a Federal Judge from Maryland challenged the second version of President Trump’s plan to bar immigrants for these areas from entering the United States as U.S. security officials seek to improve its vetting procedures.
The litigation that occurred in Hawaii put a nationwide hold on what the executive order’s actions. Ismail Elshikh, the plaintiff alongside the State of Hawaii, asserted that once effective, the temporary travel ban would bring about emotional pain and suffering for both him and his family. The Court interpreted this as a violation of Dr. Elshikh’s Establishment Clause rights.
Before even getting into the Establishment Clause, there is a primary element that needs to be satisfied to bring any Constitutional challenge forward, and that element is standing. In order for a plaintiff to have standing, they need to demonstrate that something – in this case, President Trump’s second travel ban – is causing them injury or harm. If a plaintiff has no standing, they have no case.
Dr. Elshikh is asserting that because his mother-in-law lives in Syria, a country affected by President Trump’s executive order, his family will be devastated and saddened. This is where the Court begins to tread in dangerous waters. If courts are going to begin granting standing to plaintiffs on the grounds of emotional distress, virtually the entire population of the United States could sue the federal government over policy and have their motions granted – nearly every policy at the State and Federal level harms an individual in some way.
Judge Watson’s ruling is already planned to be challenged by the Trump Administration, and when the time comes the appeal will head to the Ninth Circuit Court of Appeals and then most likely the Supreme Court. The Ninth Circuit and the Supreme Court will need to take into careful account Watson’s application and granting of standing in this matter as it has the potential to set one of the most dangerous precedents in the history of constitutional law.
Guest Contributor Zak Fama