by Josh Gerstein · March 15, 2017
President Donald Trump effectively abandoned an earlier, broader version of his travel ban order after the bulk of it was blocked by another federal judge. | Getty
The ruling is a major setback for the president’s revised executive order cracking down on immigration.
A federal judge in Hawaii issued a worldwide restraining order against enforcement of key parts of President Donald Trump’s revised travel ban executive order just hours before the directive was set to kick in.
U.S. District Court Judge Derrick Watson ruled that the state of Hawaii and a local Muslim leader had “a strong likelihood of success on their claim” that Trump’s order intentionally targets Muslims and therefore violates the Constitution’s guarantee against establishment of religion.
Watson bluntly rejected the federal government’s claims that the new directive does not target Islam because it is focused on six countries that account for less than 9 percent of the world’s Muslims.
“The illogic of the Government’s contentions is palpable,” wrote Watson, an appointee of President Barack Obama. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise.”
The ruling is another serious blow to Trump’s attempt to limit immigration as part of what he claims is an effort to reduce the threat of terrorist attacks in the U.S.
Trump slammed the decision during a speech to a campaign rally in Nashville a short time after the new restraining order was issued.
“This is, in the opinion of many, an unprecedented judicial overreach….This ruling makes us look weak,” the president declared before appearing to vow to take the issue to the Supreme Court. “This is a watered-down version of the first one….I think we should go back to the first one and go all the way which is what I wanted to do in the first place.”
“Trump’s statements tonight? He should just continue talking, because he’s making our arguments for us,” Marielena Hincapié, Executive Director, National Immigration Law Center.
A spokewoman for the Department of Justice called the ruling “flawed both in reasoning and in scope,” adding that the administration will “continue to defend this Executive Order in the courts.”
Trump effectively abandoned the earlier, broader version of his travel ban order after the bulk of it was blocked by another federal judge and a three-judge appeals court panel declined to allow Trump to restore it.
As the White House mulled the possibility of an appeal of the latest ruling, there was one piece of good news for Trump’s team: roughly two hours after Watson issued the new restraining order, five 9th Circuit judges formally declared that the original appeals panel made a “fundamental error” by refusing to let Trump proceed with his first order.
The dissenters’ move does not alter that earlier ruling but could be seen as a signal to other judges or even the Supreme Court that v
“The President’s actions might have been more aggressive than those of his predecessors, but that was his prerogative,” Judge Jay Bybee and four other Republican-appointed appeals judges wrote in a dissent from the decision not to reconsider the appeals court’s earlier ruling. “Even if we have questions about the basis for the President’s ultimate findings—whether it was a ‘Muslim ban’ or something else—we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.”
In halting the new travel ban directive, Watson appeared to venture squarely in the direction 9th Circuit dissenters warned against. He issued his temporary restraining order on the basis of campaign trail statements by Trump that the judge said amounted to “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”
Watson’s ruling — applicable “in all places, including the United States” — blocked two core provisions of Trump’s redrafted order: a 90-day halt in issuance of visas to citizens of six majority-Muslim countries and a 120-day halt of refugee admissions from around the globe. The judge’s 43-page decision was issued about two hours after a court session in Honolulu where he heard arguments over the legality of the revised order Trump signed last week.
The session was one of four court showdowns across the country over attempts to block the new directive.
Two of those hearings took place in Seattle, where U.S. District Court Judge James Robart heard arguments on a suit filed by individuals in Washington state and their family members abroad. In addition, a group of about half a dozen states asked Robart, the same judge who issued the injunction last month blocking Trump’s first travel ban, to declare that his initial ruling covers the president’s replacement order.
Citing differences in the two orders, the George W. Bush appointee turned down that request, according to reporters in the courtroom. However, Robart left unclear whether he would grant separate motions to block the new order.
The first travel-ban court hearing of the day took place in Maryland Wednesday morning, where U.S. District Court Judge Theodore Chuang appeared to be seriously considering the scope, mechanics and impact of issuing an injunction blocking Trump’s new order. However, the judge did not tip his hand about whether he plans to prevent some or all of the directive from taking hold as scheduled Thursday morning at 12:01 A.M.
Chuang also said he planned to issue written a ruling soon, though perhaps not before the order goes into effect. “Hopefully today, but not necessarily,” the judge told those packed into his courtroom in Greenbelt.
Much of the argument turned on how much weight the judge should give to repeated statements Trump made during the presidential campaign about banning the entry of Muslims to the United States. Lawyers for refugee aid organizations pleaded with Chuang not to bury his head in the sand and ignore Trump’s numerous vows to cut off travel to the U.S. by adherents of Islam.
“It’s asking the court to turn a blind eye to all of the evidence that’s apparent to everybody,” said Omar Jadwat of the American Civil Liberties Union. “It doesn’t make sense to blind the court.”
However, acting Solicitor General Jeffrey Wall warned the judge against taking into account statements Trump made before he took office. The Justice Department lawyer said the revised order Trump issued last week doesn’t even mention religion.
“This is an order that draws no religious distinctions at all,” Wall insisted.
Chuang, an Obama appointee, has considerable expertise in immigration law as a former deputy general counsel at the Department of Homeland Security.
He noted that while previous presidents had singled out specific countries or groups in specific countries for similar travel bans in the past, there was none as broad as Trump’s new order to halt issuance of visas to nationals of six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.
The Maryland suit was filed last month by two refugee aid groups, the International Refugee Assistance Project (IRAP) and HIAS, a Jewish charity that facilitates refugee resettlement in the U.S. for the federal government. Several individuals who claim to be directly affected by Trump’s orders are also plaintiffs.
Both versions of the travel ban order include a 120-day suspension of refugee admissions from across the globe, but Wall questioned the standing of the refugee groups bringing the Maryland suit to make legal claims on behalf of their clients, many of whom are foreigners outside the U.S. and precluded from directly challenging visa decisions in court.
“The alien can’t challenge it, so it would be passing strange if a third party could challenge it,” the government lawyer said.
The Maryland suit is the only one that includes a challenge to a specific aspect of Trump’s orders: a provision lowering the cap on annual refugee admissions for the current fiscal year to 50,000 from 110,000. In addition to the broader argument about the order as a whole being tainted by religious bias, the suit argues that Trump had no authority to lower that cap since federal law says it must be established before the fiscal year begins.
Breaking News Alerts
Get breaking news when it happens — in your inbox.
By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time.
Chuang questioned Wednesday whether an order nullifying the reduction would actually help the refugee groups’ clients.
“What exactly is the relief you’d be seeking? I get the impression you’d like me to order that the president admit 110,000 [refugees,] but I’m not sure exactly how I do that,” the judge said. He said that even if he blocked that section of Trump’s order, “it wouldn’t prevent the executive branch from slowing down the process.”
Another Justice Department attorney arguing at the Maryland hearing, Arjun Garg, asserted that the 120-day halt the new order puts on processing of refugee applications doesn’t amount to the kind of final action that can be challenged under federal law.
“There’s no final decision. It’s just a later decision,” Garg said. Government lawyers repeatedly referred to the suspension of issuance of visas as “a temporary pause.”
ACLU attorney Jadwat disputed that characterization. “It’s not clear they’re not stopping them forever. They’re stopping them initially for 90 days,” he said, noting that the order suggests the moratorium could be extended.
The Justice Department attorneys also argued that the case should wait to see if individual immigrants receive waivers that allow them to get visas despite the six-country ban.
However, National Immigration Law Center lawyer Justin Cox said that suggestion was bizarre given the claim that the process itself amounts to illegal religious discrimination.
“If there were a special process for black folks to live in a certain neighborhood, you wouldn’t say their claims are not ripe until they’re denied” permission, Cox said.
Washington state Attorney General attempts to block Trump’s revised travel ban
Trump has argued that he has authority to suspend immigration from any country for national security reasons, but Chuang noted that statute refers to the “entry” of foreigners and not to the issuance of visas. At one point, the judge said it was possible he could enter an order that would require the issuance of visas to continue, while not taking away Trump’s right to stop people from entering the country.
Wall suggested that could lead to a chaotic situation, but was an option the government could consider if courts insisted that visa processing continue as normal. The government lawyer did not say directly that it could result in a repeat of the situation after the initial travel ban order was signed in late January, when travelers with what appeared to be valid visas issued overseas arrived at U.S. airports only to be delayed, detained and in some cases sent back to the countries they traveled in from.
Arguments in the Hawaii case paralleled many of those offered in Maryland, according to press reports.
However, the judge said he believed he was bound to uphold the state’s standing to challenge Trump’s revised order as a result of a 9th Circuit Court of Appeals ruling last month in the case brought by the states of Washington and Minnesota, journalists in the courtroom said.
The federal government was represented at the Hawaii hearing via telephone by Wall, the same lawyer who led the Justice Department’s arguments earlier in the day in the court session in Greenbelt.
After the Maryland hearing, refugee advocates said they were hopeful that the new travel ban order would be halted. They also used bleak language to describe the preparations they were making for the possibility the new order will kick in.
“We’re trying to find emergency shelter and places for people to hide so they don’t get killed while the U.S. is in the process of implementing this executive order,” IRAP’s Rebecca Heller said.
Josh Dawsey contributed to this report from Nashville. Nahal Toosi also contributed reporting.