Federal Court In Hawaii Blocks Donald Trump’s New Travel Ban
The court placed a nationwide hold on key elements of the president’s new ban.
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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.
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