Judge ques­tions gov­ern­ment lawyer on nar­row­ing travel ban block

Austin American-Statesman - - STATESMAN AT THE LEGISLATURE - By Jennifer Sinco Kelleher

A fed­eral judge in Hawaii ques­tioned a gov­ern­ment at­tor­ney who urged him Wed­nes­day to nar­row his or­der block­ing President Don­ald Trump’s travel ban af­ter ar­gu­ing that a freeze on the na­tion’s refugee pro­gram had no ef­fect on the state.

U.S. Dis­trict Judge Der- rick Wat­son heard ar­gu­ments on whether to ex­tend his tem­po­rary or­der un­til Hawaii’s law­suit works its way through the courts. He made no im­me­di­ate rul­ing.

Hawaii says the pol­icy dis­crim­i­nates against Mus­lims and hurts the state’s econ­omy. The im­plied mes­sage in the re­vised ban is like a “neon sign flash­ing ‘Mus­lim Ban, Mus­lim Ban’ ” that the gov­ern­ment didn’t bother to turn off, state At­tor­ney Gen­eral Dou­glas Chin told Wat­son.

The gov­ern­ment says the ban falls within the president’s power to pro­tect na­tional se­cu­rity. Hawaii has only ex­pressed gen­er­al­ized con­cerns about its ef­fect on stu­dents and tourism, said De­part­ment of Jus­tice at­tor­ney Chad Readler.

Par­tic­i­pat­ing by tele­phone, Readler asked that Wat­son be guided by nar­rower rul­ings block­ing only the part of Trump’s ex­ec­u­tive or­der that sus­pends new visas for peo­ple from six Mus­lim-ma­jor­ity coun­tries.

Wat­son said the gov­ern­ment only ar­gued for the nar­rower in­ter­pre­ta­tion af­ter a fed­eral judge in Mary­land blocked the six-na­tion travel ban but not the sus­pen­sion of the refugee pro­gram. That judge said it wasn’t clear that the refugee freeze was sim­i­larly mo­ti­vated by reli- gious bias.

Wat­son noted that the gov­ern­ment said 20 refugees had been re­set­tled in Hawaii since 2010.

“Is this a math­e­mat­i­cal ex­er­cise that 20 isn’t enough? … What do I make of that?” the judge asked Readler.

Readler replied that 20 is sim­ply a small num­ber of refugees.

“In whose judg­ment?” Wat­son asked.

Con­sti­tu­tional harm ex­ists re­gard­less of the num­ber of peo­ple af­fected or for how long, Hawaii’s at­tor­ney gen­eral said.

In his ar­gu­ments, Chin quoted Trump’s com­ments that the re­vised travel ban is a “wa­tered down” ver­sion of the orig­i­nal.

“We can­not fault the pres- ident for be­ing po­lit­i­cally in­cor­rect, but we do fault him for be­ing con­sti­tu­tion­ally in­cor­rect,” Chin said.

This month Wat­son pre­vented the fed­eral gov­ern- ment from sus­pend­ing new visas for peo­ple from Soma- lia, Iran, Syria, Su­dan, Libya and Ye­men and freez­ing the na­tion’s refugee pro­gram. His rul­ing came just hours be­fore the fed­eral gov­ern- ment planned to start en­forc­ing Trump’s ex­ec­u­tive or­der.

Wat­son, nom­i­nated to the bench by for­mer President Barack Obama in 2012, had agreed with Hawaii that the ban would hurt the state’s tourism-de­pen­dent econ­omy and that it dis­crim­i­nates based on na­tion­al­ity and re­li­gion.

Trump called Wat­son’s rul­ing an ex­am­ple of “un­prece­dented ju­di­cial over­reach.”

Hawaii’s rul­ing would not be di­rectly af­fected by a de­ci­sion sid­ing with the fed­eral gov­ern­ment in the Mary­land case, le­gal ex­perts said. The 4th U.S. Cir­cuit Court of Ap­peals set a hear­ing for May 8 to con­sider the ad­min­is­tra­tion’s ap­peal.

“What a rul­ing in 4th Cir­cuit in fa­vor of the ad­mi­nis- tra­tion would do is cre­ate a split in au­thor­ity be­tween fed­eral courts in dif­fer­ent parts of the coun­try,” said Richard Primus, a pro­fes­sor of con­sti­tu­tional law at the Univer­sity of Michi­gan law school.

“Cases with splits in au­thor­ity are cases the U.S. Supreme Court ex­ists to re­solve,” he said.

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