Maria Sacchetti,, Kalani Takase, Matt Zapotosky
A federal judge in Hawaii on Wednesday issued a sweeping freeze of President Trump’s new executive order, hours before it would have temporarily barred the issuance of new visas to citizens of six Muslim-majority countries and suspended the admission of new refugees.
In a blistering, 43-page opinion, U.S. District Judge Derrick K. Watson pointed to Trump’s own comments and those of his close advisers as evidence that his order was meant to discriminate against Muslims and declared there was a “strong likelihood of success” those suing would prove the directive violated the Constitution.
Watson declared that “a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.”
He lambasted the government, in particular, for asserting that because the ban did not apply to all Muslims in the world, it could not be construed as discriminating against Muslims.
“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.”
At a rally in Nashville, Trump called the ruling “terrible” and asked a cheering crowd if the ruling was “done by a judge for political reasons.” He said the administration would fight the case “as far as it needs to go,” including up to the Supreme Court, and rued that he had been persuaded to sign a “watered-down version” of his first travel ban.
“Let me tell you something, I think we ought to go back to the first one and go all the way,” Trump said. “The danger is clear, the law is clear, the need for my executive order is clear.”
Watson was one of three federal judges to hear arguments Wednesday about the ban, though he was the first to issue an opinion. Federal judges in Washington state and Maryland said they would do so soon.
As the ruling in Hawaii was being handed down, James L. Robart, the federal judge in Washington who froze Trump’s first travel ban, was hearing arguments about whether he should freeze the second. He said he did not think his first freeze was still in effect, though he did not immediately rule on whether he should issue a new one.
Watson’s decision might not be the last word. He was considering only a request for a temporary restraining order, and while that required him to assess whether challengers of the ban would ultimately succeed, his ruling is not final on that question. The Justice Department could now appeal the ruling, or wage a longer-term court battle before the judge in Hawaii.
Watson’s decision came in response to a lawsuit filed by Hawaii. Lawyers for the state alleged the new entry ban, much like the old, violated the establishment clause of the First Amendment because it was essentially a Muslim ban, hurt the ability of state businesses and universities to recruit top talent and damaged the state’s robust tourism industry.
They pointed particularly to the case of Ismail Elshikh, the imam of the Muslim Association of Hawaii, whose mother-in-law’s application for an immigrant visa was still being processed. Under the new executive order, lawyers for Hawaii said, Elshikh feared that his mother-in-law, a Syrian national, would ultimately be banned from entering the United States.
“Dr. Elshikh certainly has standing in this case. He, along with all of the Muslim residents in Hawaii, face higher hurdles to see family because of religious faith,” lawyer Colleen Roh Sinzdak said at a hearing Wednesday. “It is not merely a harm to the Muslim residents of the state of Hawaii, but also is a harm to the United State as a whole and is against the First Amendment itself.”
Elshikh is a U.S. citizen of Egyptian descent who has been a resident of Hawaii for over a decade. His wife is of Syrian descent and is also a resident of Hawaii.
Justice Department lawyers argued that the president was well within his authority to impose the ban, which was necessary for national security, and that those challenging it had raised only speculative harms.
“They bear the burden of showing irreparable harm . . . and there is no harm at all,” said acting U.S. solicitor general Jeffrey Wall, who argued on behalf of the government in Greenbelt, Md., in the morning and by phone in Hawaii in the afternoon.
Watson agreed with the state on virtually all the points. He ruled that the state had preliminarily demonstrated its universities and tourism industry would be hurt, and that harm could be traced to the executive order. He wrote that Elshikh had alleged “direct, concrete injuries to both himself and his immediate family.”
And Watson declared that the government’s assertion of the national security need for the order was “at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” He pointed to Trump’s own campaign trail comments and public statements by advisers as evidence.
“For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States,’ ” Watson wrote. “Nor is there anything ‘secret’ about the Executive’s motive specific to the issuance of the Executive Order. Rudolph Giuliani explained on television how the Executive Order came to be. He said: ‘When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ”
Watson also pointed to a recent Fox News appearance by Stephen Miller, in which the Trump policy adviser said the new ban would have “mostly minor technical differences” from the previous iteration frozen by the courts, and Americans would see “the same basic policy outcome for the country.”
“These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose,” Watson wrote.
Opponents of the ban across the country — including those who had argued against it in different cases on Wednesday — hailed Watson’s ruling.
Washington Attorney General Bob Ferguson, who had asked Robart to block the measure, called the Hawaii ruling “fantastic news.” Justin Cox, a staff attorney for the National Immigration Law Center who had argued for a restraining order in the case in Maryland, said: “This is absolutely a victory and should be celebrated as such, especially because the court held that the plaintiffs, that Hawaii was likely to succeed on its establishment clause claim which essentially is that the primary purpose of the executive order is to discriminate against Muslims.”
Cox said while the judge did not halt the order entirely, he blocked the critical sections — those halting the issuance of new visas and suspending the refugee program. Left intact, Cox said, were lesser-known provisions, including one that orders Homeland Security and the attorney general to publicize information about foreign nationals charged with terror-related offenses and other crimes. He said the provision seems designed to whip up fear of Muslims.
“It’s a shaming device that it’s really a dehumanizing device,” he said. “It perpetuates this myth, this damaging stereotype of Muslims as terrorists.”
Trump’s new entry ban had suspended the U.S. refugee program for 120 days and halted for 90 days the issuance of new visas to people from six Muslim-majority countries: Iran, Somalia, Sudan, Yemen, Libya and Syria. It was different from the first entry ban in that it omitted Iraq from the list of affected countries, did not affect any current visa or green-card holders and spelled out a robust list of people who might be able to apply for exceptions. (The Washington Post)