Trump Travel Ban Blocked for as Long as Court Battle Goes OnBy and
Hawaii judge extends temporary halt to president’s travel ban
Ruling portends long visa-limits fight for six Muslim nations
President Donald Trump’s effort to enforce his temporary travel ban on six mostly Muslim nations will likely be bogged down in court for months -- perhaps years -- after a federal judge’s ruling that his revised policy was just a cleaned-up version of the original.
The White House’s effort to “sanitize” the first order failed to make “genuine changes” to avoid violating the Constitution’s ban on religious bias, a Honolulu federal judge ruled. While the administration’s past conduct doesn’t “forever taint” future national security actions, the judge said he couldn’t ignore the “religious animus, invective and obvious pretext” leading up to the president’s edict.
“The court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has,” U.S. District Judge Derrick Watson said in his ruling Wednesday. “The Supreme Court and this circuit both dictate otherwise, and that is the law this court is bound to follow."
Watson, who on March 15 temporarily blocked the re-worked policy, extended that prohibition on enforcing Trump’s executive order until a decision on a permanent injunction or a higher court overturns his ruling.
The decision may cause further consternation for an administration struggling to enact some of the president’s central campaign platforms. It’s yet another victory for states, advocacy groups, technology companies and universities that successfully challenged the first executive order and its replacement as being at odds with nation’s founding principles and hurting the economy.
The travel-ban lawsuits are likely to drag on for so long that the executive order will effectively be blocked almost permanently while the battle over it plays out in federal courts, said Stephen Wasby, a legal scholar at the State University of New York in Albany. Even if one appeals court agrees to an accelerated schedule, other courts may slow proceedings, Wasby said. Plaintiffs in one of the cases in Seattle federal court this week proposed a trial in March 2018.
“By the time it gets to the Supreme Court, it could be quite a while,” Wasby said.
White House spokesman Sean Spicer said Thursday that Justice Department is reviewing Watson’s decision to determine the best way to defend the president’s executive order.
“This ruling is just the latest step that will allow the administration to appeal,” Spicer said at his daily press briefing. “The White House firmly believes this order is lawful and necessary.”
The next venue for the Hawaii case would be the U.S. Court of Appeals in San Francisco, the same court that upheld a Seattle judge’s order stopping Trump’s original travel ban. There’s already one conflicting ruling in Virginia, while a Maryland decision partially blocking the travel ban is already on appeal.
The Trump administration spent weeks crafting its March 6 revised order after judges rejected the first travel ban, which spurred chaos at airports across the country and a rush to the courthouse by civil rights groups and states led by Democrats. While exempting permanent U.S. residents and people who already had visas, the revised policy imposed a 90-day ban on new visas for travelers from Syria, Iran, Yemen and the three other countries. It also suspended barred refugees from entering the U.S. for 120 days.
Trump’s campaign rhetoric and comments outside the courtroom have come back to haunt him in court. His calls as a candidate for a “total shutdown” on Muslims entering the U.S., as well as discussion of creating a Muslim registry, show that his executive orders were motivated by religious bias, opponents have argued in court.
The revised ban on new visas was barred by a federal judge in Maryland, while a Virginia judge ruled that the policy fell within the president’s powers. The U.S. Court of Appeals in Richmond, Virginia, is set to hear the administration’s appeal on May 8. The American Civil Liberties Union, which won that temporary injunction on behalf of the International Refugee Assistance Project, asked on Thursday that the hearing be conducted by the full court rather than a three-judge panel.
Hawaii Attorney General Douglas Chin, who filed the case in his state, called Wednesday’s ruling another step to alleviate uncertainty for visa applicants and refugees. “I don’t think it applies just to the six Muslim majority nations,” Chin said. “Given the way the executive order reads, it left the door open to other countries to be named as well.”
In court Wednesday, Chin argued that Trump himself strengthened the case for keeping the freeze on the travel restrictions while the legal fight continues. Chin cited the president’s comments at a rally in Nashville, Tennessee, within hours of Watson’s earlier restraining order. Trump called the revised policy a “watered-down version” of the first, adding that he still preferred the first.
Those comments belied administration claims that there was no intention to discriminate against Muslims, Chin said.
‘Animus’ Not Cured
The “issue of animus has not been cured.” Chin told Watson. “It’s been intensified.”
Chad Readler, the lawyer arguing the case by phone for the Justice Department, told the judge that the revised order eliminated any reference to religion, including a provision that critics said would have favored Christians over Muslims. He said at the very least, the administration should be allowed to enforce a 120-day suspension of refugee programs.
That provision wasn’t blocked by the Maryland judge.
Any harm to Hawaii would be minimal because only 20 of the almost 500,000 refugees who came to the U.S. during the past eight years settled in the state, Readler said.
That argument prompted a rebuke from Watson, who asked why that evidence wasn’t presented earlier. “Is this a mathematical exercise,” Watson asked. “That 20 may not be enough to show standing, but 25 might be or 30 might be?”
In his ruling, Watson rejected the Justice Department’s request to leave intact the refugee ban, citing the Constitution’s bar on favoring -- or establishing -- one religion over another.
“It makes little sense to do so,” the judge wrote. “That is because the entirety of the executive order runs afoul of the Establishment Clause where openly available data support a commonsense conclusion that a religious objective permeated the government’s action.”
The case is State of Hawaii v. Trump, 17-cv-00050, U.S. District Court, District of Hawaii (Honolulu).
— With assistance by Andrew M Harris, Robert Burnson, and Bob Van Voris