Wednesday March 15, 2017
Hawaii, the most ethnically diverse U.S. state, is mounting one of the earlier challenges to President Donald Trump's travel ban. The state plans to argue that the restrictions on travelers from six predominantly Muslim nations amounts to religious discrimination. Court proceedings begin March 15 at 9:30 a.m. in Honolulu/ 3:30 p.m. New York time. Join us at TOPLive for full coverage and analysis.
Greetings from Hawaii federal court in Honolulu. I'm Kartikay Mehrotra, legal reporter with Bloomberg News. I'll be guiding you through proceedings in today's case -- the State of Hawaii v. President Trump.
We're in Judge Derrick K. Watson's courtroom, which actually has its own name. Most federal courtrooms around the country are numbered, but Judge Watson's court is called Aha Kupono, or Place of Justice. Both sides certainly believe they have the moral high ground in today's hearing, which could decide whether President Donald Trump's temporary travel ban will stand.
Judge Watson's courtroom is beginning to fill-in. Reporters from 17 media organizations have filled the first two rows of the court. The rest of the seats are occupied by friends of the court and the general public. Doors have also opened to the first of two overflow rooms.
Hawaii District Court Chief Judge Michael Seabright, who led preparations for today's hearing, says this is by far the most attention this court has received under his watch.
Hawaii Attorney General Douglas Chin claims that while the new executive order is indeed clear of any references to religion, including exemptions for religious minorities in Syria, the intent is clear -- religious discrimination. He points to almost a dozen references to Muslim bans or registries made by Trump from July 2015 to December 2016 as he emerged as the Republican Party's nominee and ultimately won the presidency.
A central question before Judge Watson is whether to accept the president's campaign rhetoric as evidence of discriminatory intent.
The U.S. Justice Department in defending the travel order is likely to reinforce its argument that:
- This new travel ban has been tailored to earlier rulings by federal courts in order to stand-up to such constitutional challenges, mainly by scraping away references to religion.
- The president holds final authority on matters of national security as they pertain to immigration.
- Plaintiffs, U.S. citizens and permanent residents, haven't been directly harmed by the order and non-visa holders aren't allowed to file claims.
Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation, backs Trump. He said in an e-mail Wednesday that the government must win today "if the judge actually follows the law and applies the broad discretion given to the president by Congress to suspend the entry of any aliens."
Why are we in Hawaii?
The state's attorney general, Doug Chin, had asked a Seattle judge for permission to participate in the February case that killed the original travel ban. The request to join Washington and Minnesota in court was denied before the final ruling. Once the president unveiled his revised order, Hawaii was the first to challenge.
Included in their motion for a temporary restraining order was a request to fast-track proceedings aimed at blocking the new policy before it can be enforced. The Justice Department agreed to the schedule, and so here we are.
AirBnB, DropBox, Lyft and Square lead a group of 58 tech companies that filed a motion in the last 20 minutes in support of Hawaii's claim to halt the president's travel ban.
Airbnb's Chris Lehane said in a statement:
"Barring people from entering our country because of where they're from is wrong. Our community’s mission is to allow anyone to belong anywhere, and we will take a stand when we see policies that conflict with our values."
A few tidbits from Hawaii's complaint about what's at stake for the state:
- Hawaii had the fifth-highest percentage of foreign born workers among U.S. states while almost a quarter of the state's business owners are foreign born.
- More than 100 of the state's residents are from the six countries prohibited from obtaining visas under the new policy.
- Hawaii's foreign students contributed some $400 million to the state's economy in 2016 while generating almost $45 million in tax revenue.
- Hawaii welcomed 8.7 million visitors accounting for $15 billion in spending in 2015.
What revisions did Trump make to the original travel ban?
- The new order excludes Iraq from the list of countries -- Iran, Libya, Somalia, Sudan, Syria and Yemen -- whose citizens are barred from entering the U.S. for 90 days.
- Like the old order, the new one prohibits entry to all refugees -- people fleeing their homelands claiming persecution or fear of violence -- for 120 days.
- Syrian refugees are no longer barred indefinitely.
The hearing before Judge Watson is the second of three clashes in federal courts around the country today that threaten implementation of the president's temporary travel order.
Earlier today in Greenbelt, Maryland, a district judge heard arguments in a motion for a temporary restraining order against the travel ban, but didn't issue a ruling. A decision could come at any time in that case, though all of the cases will play a crucial rule in how this dispute shakes out before appeals courts.
In the Maryland case U.S. District Judge Theodore Chuang reacted skeptically to a refugee-resettlement group’s request for a nationwide injunction. Chuang is a 2013 nominee of President Barack Obama.
Lee Gelernt, one of the lead lawyers for the American Civil Liberties Union arguing against the ban, said in a phone call after the Maryland hearing that observers shouldn't read too much into the judge not ruling from the bench. "We remain hopeful after the arguments that he will issue an injunction, he said."
And later on Wednesday in Seattle, U.S. District Judge James Robart, who Trump dismissed on Twitter as a ‘so-called judge" after losing the earlier ruling in his court, will consider a motion for an injunction against the travel ban in a suit brought by immigrants rights groups.
The big picture: At the heart of today's hearings is one of President Trump's favored campaign platforms. His promise for a Muslim travel ban and registry was met with raucous applause across the country as he campaigned for the presidency.
Judge Watson enters. The hearing begins as attorneys introduce themselves.
Victory in court today and over the next few weeks of appeals would be a major coup for a president still searching for a trademark achievement after eight-weeks in office. Defeat would create a gap in the president's plan for ensuring the country's national security and quite possibly another Twitter onslaught aimed at the American judiciary.
And dozens of suits against the travel ban will continue in courtrooms across the U.S. even if an injunction is issued Wednesday in Hawaii or Maryland. In one such case, in federal court in Washington, D.C., four Iranian-American organizations filed an amended complaint Wednesday seeking to overturn the revised ban. They plan to seek a nationwide injunction of their own.
Civil rights lawyer Cyrus Mehri said Wednesday in a statement about the lawsuit in Washington, D.C.:
“From separating families to disrupting the education of college and law students to harming our small businesses, the Trump Administration’s revised travel ban creates irreparable harm for Iranian-American families.”
Back to Hawaii. Watson opens proceedings with a joke about Elliot Enoki physically appearing out-manned by the six Hawaii attorneys present in court. The Justice Department's attorneys are responding via teleconference.
With Hawaii U.S. Attorney Florence Nakakuni among the 40+ federal prosecutors culled by the Trump administration late last week, Elliot Eoki is present in court.
Judge Watson states that Justice's 127 page reply brief is in violation of local rules. Even so, he will accept the statement without modification.
``I'm personally more interested in the constitutional claims of the case that have been asserted in the motion for the temporary restraining order," says Judge Watson.
Hawaii opens arguments - states that the Trump administration is making the same arguments that ended in defeat for the original travel ban.
First argument: State cites statute that states, "No person shall be discriminated against in the issuing of an immigrant visa based on the person's nationality. The law unambiguously directs that no nationality-based discrimination should occur."
"If that isn't discrimination based on nationality, I don't know what is," says plaintiffs attorney.
Judge Watson replies, ``Why can't I read statute that states that the government has unfettered discretion to determine immigration policy as he's done here?"
Hawaii replies: "I agree that statute has to be reconciled. The president has broad powers, but it doesn't extend to the flat undoing of nationality based discrimination statue also approved by Congress."
Katyal argues that terrorism-based claim by government violates statute that calls for very specific criteria on inadmissibility. "New order ignores that and replaces it with a flat, unambiguous nationality-based ban.''
Watson asks Katyal to shift dialogue to Constitutional arguments. Katyal says Hawaii is not afraid of a ``Constitutional-based ruling."
Colleen Roh Sinzdak is going to make the state's Constitutional arguments.
If a policy-maker makes claims targeting a particular faith and then invokes a policy embodying that facility, it threatens the country's atmosphere of religious freedom, which may be permanently harmed if the order is imposed, says Sinzdak regarding establishment clause claims over religious freedom.
Hawaii earlier added the imam of the Muslim Association of Hawaii as a co-plaintiff, Ismail Elshikh. The state contends the travel ban subjects him, his family and members of his mosque to discrimination, denying them the right to travel. The claim focuses on Elshikh's mother-in-law, who is Syrian and will be barred from coming to the U.S. to visit her grandchildren.