US Federal Court In Hawaii Blocks Donald Trump’s New Travel Ban
“The notion that one can demonstrate
animus toward any group of people only by targeting all of them at once is
fundamentally flawed” - U.S. District Judge Derrick Watson
A federal judge in
Hawaii has placed a
nationwide hold on key aspects of President Donald Trump’s second
attempt at a ban on travel ― a scaled-back version that targeted
all non-visa holders from six Muslim-majority countries, as well as a halt on
the U.S. refugee resettlement program ― just hours before the new restrictions
were to take effect. U.S. District Judge
Derrick Watson said sections of the new travel order likely amounted to a
violation of the First Amendment’s
establishment
clause, which forbids the government from disfavoring certain religions
over others.
Watson gave short
shrift to the Trump administration’s argument that the new restrictions applied
to a “small fraction” of the world’s 50 predominantly Muslim nations ― and thus
could not be read to discriminate Muslims specifically. “The illogic of the
Government’s contentions is palpable,” Watson wrote. “The notion that one can
demonstrate animus toward any group of people only by targeting all of them at
once is fundamentally flawed.”
The judge also
discarded the government’s defense that the text of the new executive order was
silent on religion, supposedly solving constitutional defects identified by
courts with the first order.
“Any reasonable,
objective observer would conclude ... that the stated secular purpose of the
Executive Order is, at the very least, secondary to a religious objective of
temporarily suspending the entry of Muslims,” Watson wrote.
The ban was scheduled to
begin at 12:01 a.m. ET on Thursday, 10 days after Trump signed the revised
order. The staggered rollout was designed to give fair warning to those
potentially affected ― a contrast from the disorderly implementation of the president’s
original executive order, which left thousands stranded, detained or with their
visas canceled without notice.
Trump led a booing
audience at a rally in Nashville Wednesday night in criticizing what he called
the “flawed ruling.” The president claimed he has the power to suspend
immigration, and slammed what he called “unprecedented judicial overreach.” “This ruling makes us
look weak, which by the way we no longer are,” Trump complained. He added that
he would “fight this terrible ruling” in the Supreme Court if necessary. He
said the new order “was a watered-down version of the first order” and that he
would prefer to go back to the original ― providing more ammunition to
opponents’ arguments that, at their core, they are the same.
The Justice Department
called the ruling “flawed both in reasoning and in scope.” The president has
“lawful authority in seeking to protect our nation’s security,” spokeswoman
Sarah Isgur Flores said in a statement. Trump “should just
continue talking, because he is making our arguments for us,” Marielena
Hincapié, executive director of the National Immigration Law Center, said on a
call with reporters after Trump’s remarks. Her organization was part of a
lawsuit in Maryland against the ban.
The Washington
state attorney general’s office, which led the successful challenge to
Trump’s first ban, hailed the “teamwork of states” in the “effort to stem the
chaos over the past month.” Related legal challenges in Seattle and
Maryland, meanwhile, were pending, and federal judges there could
issue additional rulings blocking the new travel restrictions.
The first order,
signed on Jan. 27, went into effect immediately, unleashing chaos nationwide.
Attorneys and volunteers spent days at airports trying to assist people who had
been detained and were being questioned on arrival. Protests erupted in cities
around the world. And courts
began chipping away at the ban almost as soon as it was implemented.
Of those rulings, the
more significant came from federal judge in Seattle, who blocked the entire order in early February, preventing the
government from enforcing it anywhere in the country. An appeals court later upheld that ruling, noting that Trump’s ban likely
violated the Constitution.
After several delays and false starts, the administration
reworked the executive order to create one that would pass muster in the
courts, although Stephen Miller, a senior White House adviser, conceded before
it was unveiled that it would have the “same basic policy outcome.” Unlike the first ban, it does
not apply to current visa holders or to nationals of Iraq, which originally was
one of the countries whose nationals were barred for 90 days.
In his decision,
Watson singled out that Miller quote, broadcast on Fox News in the days ahead
of Trump’s new ban. The judge also
highlighted similar comments by longtime Trump
surrogate Rudy Giuliani, who all but admitted on Fox News that the
president had asked him look for legal ways to shut out Muslims. The new order does not
single out Syrian refugees for indefinite restriction from entry, and does not
include a preference for religious minority refugees, widely viewed as a way to
admit Middle Eastern Christians while excluding Muslims.
As drafted, the new
order still has the potential to affect tens of thousands of people. Like the
now-revoked version, it suspends the refugee resettlement program for at least
120 days and instructs the government to admit up to 50,000 refugees this
fiscal year, rather than the goal of 110,000 admissions set by former President
Barack Obama. For 90 days, nationals of Iran, Libya, Somalia, Sudan, Syria and
Yemen will be barred from the country unless they have a valid visa.
Legal opponents said
the new travel ban has the same constitutional defects that courts identified
in the first one ― it erects an entry barrier for Muslims on the basis of their
faith, a policy choice that Trump promised to carry out as a candidate, but one
that national security experts and observers have warned has damaging implications for Americans and refugees both
here and abroad. Those objections
aside, Watson suggested that everything is not lost for the Trump
administration, and that it could still craft a future policy that aimed to
protect national security, independent of its misfires.
”Here, it is not the
case that the Administration’s past conduct must forever taint any effort by it
to address the security concerns of the nation,” the judge wrote. “Based upon
the current record available, however, the Court cannot find the actions taken
during the interval between revoked Executive Order No. 13,769 and the new
Executive Order to be genuine changes in constitutionally significant
conditions.” The government’s
likely appeal will go to the U.S. Court of Appeals for the 9th
Circuit, the same appellate court that last month refused to allow Trump’s
first travel ban from being enforced.
