Where do foreign nationals then acquire their supposed First Amendment right to enter the United States without religious discrimination?

The answer offered by Judge Derrick Watson’s opinion is a judicial reach of a kind that might sound clever to the student editors of an academic law review—but that should worry all Americans in real life. By barring foreign Muslims, the opinion argues, the Trump administration has signaled disfavor of domestic Muslims as well, thereby violating their First Amendment rights to religious equality.

Not only that! Watson’s opinion further contends that this argument is so convincing that it is “highly likely” to prevail on the ultimate merits—and for that reason, that he is justified in issuing immediately a temporary restraining order against Trump’s ban.

This double argument is bold, to put it mildly.

What it does, in effect, is globalize the First Amendment (and possibly other amendments too) provided only that a fellow adherent of that religion live inside the United States.

This approach is so ambitious and so new that it renders it incredible Judge Derrick Watson’s claimed certitude that the plaintiffs are “highly likely” to prevail. Their chances are at best touch-and-go; at worst, probably doomed.

Frankly, under any other president than Donald Trump, it seems impossible that a federal judge would have expressed such certitude—or granted their requested order. The federal courts have historically granted large deference to presidential power over immigration and naturalization. The Supreme Court ruled as recently as 2015 that the president could deny a visa to an alien for no reason at all! In answer to an alien who contended that the U.S. government had violated her due process rights, the court ruled:

She claims that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse. There is no such constitutional right.

Why then did Watson accept the far-fetched argument that aliens can acquire First Amendment rights at second-hand? Watson candidly confessed that he was swayed by the avowals by the president and his senior aides that their motives were indeed based on irrational religious discrimination. “In this highly unique case,” he wrote, “the record provides strong indications that the national security purpose is not the primary purpose for the travel ban.” He could not overlook "significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”

To amend an old saying: Bad presidents make bad law. Because President Trump is behaving in an unprecedented way, Watson feels called upon also to behave in an unprecedented way. In order to defend a constitutional value—equal treatment of all American religions—Watson has issued an order that corrodes the constitutional system itself. It’s a lose-lose proposition, because either way a constitutional norm would be weakened before the world.