Northwest Arkansas Democrat-Gazette
Judge halts president’s travel order
Citing ‘overreach,’ ‘danger,’ Trump promises to appeal
A federal judge in Hawaii issued a nationwide order Wednesday evening blocking President Donald Trump’s ban on travel from parts of the Muslim world, hours before it was to take effect.
The ruling was the second to block a travel ban nationwide, after a federal court in Seattle halted an earlier version of the executive order last month.
The ruling came as opponents asked judges in three states — Hawaii, Maryland and Washington — to block the executive order that targets six predominantly Muslim countries. More than half a dozen states are trying to stop the ban.
Trump called the ruling an example of “unprecedented judicial overreach” and said his administration would appeal it to the U.S. Supreme Court, if necessary.
“We’re going to win. We’re going to keep our citizens safe,” the president said at a campaign-style rally in Nashville, Tenn. “The danger is clear. The law is clear. The need for my executive order is clear.”
In the lawsuit brought by Hawaii’s attorney general, Doug Chin, U.S. District Judge
Derrick Watson questioned whether the administration was motivated by national security concerns and said Hawaii would suffer financially if the executive order blocked the flow of students and tourists to the state. He concluded that Hawaii was likely to succeed on a claim that the ban violates First Amendment protections against religious discrimination.
“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.”
Watson also appeared skeptical of the government’s claim that past comments by Trump and his allies had no bearing on the case.
“Are you saying we close our eyes to the sequence of statements before this?” Watson, an appointee of President Barack Obama, asked in a hearing Wednesday before he ruled against the administration.
Lawyers for Hawaii alleged the revised travel ban still violates the establishment clause of the First Amendment because it is essentially a Muslim ban, hurts the ability of state businesses and universities to recruit top talent and damages the state’s robust tourism industry.
They pointed particularly to the case of Ismail Elshikh, the imam of the Muslim Association of Hawaii, whose Syrian 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 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 the hearing. “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.”
Justice Department lawyers argued that the president was well within his authority to impose the ban 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.
Wall suggested that if the judge was inclined to issue an injunction, it should be tailored specifically to Hawaii and not nationwide.
MARYLAND HEARING
In Maryland, attorneys told a federal judge that the measure still discriminates against Muslims.
Government attorneys argued that the ban was revised substantially to address legal concerns, including the removal of an exemption for religious minorities from the affected countries.
“It doesn’t say anything about religion. It doesn’t draw any religious distinctions,” Wall said.
Wall said the order was based on national security concerns raised by the Obama administration in its move toward stricter screening of travelers from the six countries.
“What the order does is a step beyond what the previous administration did, but it’s on the same basis,” Wall said.
Attorneys for the American Civil Liberties Union and other groups said Trump’s statements on the campaign trail and statements from his advisers since he took office make clear that the intent of the order is to ban Muslims. Trump policy adviser Stephen Miller has said the revised order was designed to have “the same basic policy outcome” as the first.
“Generally, courts defer on national security to the government,” said U.S. District Judge Theodore Chuang. “Do I need to conclude that the national security purpose is a sham and false?”
In response, ACLU attorney Omar Jadwat pointed to Miller’s statement and said the government had put out misleading and contradictory information about whether banning travel from six specific countries would make the nation safer.
The Maryland lawsuit also argues that it’s against federal law for the Trump administration to reduce the number of refugees allowed into the United States this year by more than half, from 110,000 to 50,000. Attorneys argued that if that aspect of the ban takes effect, 60,000 people would be stranded in wartorn countries with nowhere else to go.
The ACLU and lawyers for refugee-aid organizations asked Chuang to halt the entire order, arguing that it is a pretext to discriminate against Muslims, who make up the majority of refugees admitted to the United States.
“If you were trying to ban Muslims,” Jadwat told Chuang, “banning refugees would be one compelling way to do it.”
Justin Cox, a lawyer for the National Immigration Law Center who also argued
in court, said refugees and immigrants feel that Trump’s order essentially targets Islam. “All of these individuals express that they feel that their religion has been condemned by the executive order,” he said.
CONFLICTING LAWS
In Washington state, U.S. District Judge James Robart — who halted the original ban last month — heard arguments in a lawsuit brought by the Northwest Immigrant Rights Project, which is making arguments similar to the ACLU’s in the Maryland case.
Robart said he is most interested in two questions presented by the group’s challenge to the ban: whether the ban violates federal immigration law, and whether the affected immigrants would be “irreparably harmed” should the ban go into effect.
He spent much of Wednesday afternoon’s hearing grilling the lawyers about two seemingly conflicting federal laws on immigration — one that gives the president the authority to keep “any class of aliens” out of the country, and another that forbids the government from discriminating on the basis of nationality
when it comes to issuing immigrant visas.
Robart said he would issue a written order, but he did not say when. He is also overseeing the challenge brought by Washington state.
State Attorney General Bob Ferguson argues that the new order harms residents, universities and businesses, especially tech companies such as Washington-based Microsoft and Amazon, which rely on foreign workers. California, Maryland, Massachusetts, New York and Oregon have joined the claim.
Washington and Hawaii say the order also violates the First Amendment, which bars the government from favoring or disfavoring any religion. On that point, they say, the new ban is no different than the old. The states’ First Amendment claim has not been resolved.
The lawsuits also have claimed that the order disrupts the functions of companies, charities, public universities and hospitals that have deep relationships overseas. In the Hawaii case, nearly five dozen technology companies, including Airbnb, Dropbox, Lyft and TripAdvisor, joined in a brief objecting to the travel ban.
Trump’s original ban, released Jan. 27, temporarily barred travel from seven majority-Muslim nations, making no explicit distinction between citizens of those countries who already had green cards or visas to enter the U.S. and those who did not.
That ban also suggested that Christian refugees from those countries would be given preference in the future, opening it up to accusations that it unlawfully targeted Muslims for discrimination.
Trump issued his newer and narrower travel ban March 6, with the aim of pre-empting new lawsuits by abandoning some of the most contentious elements of the first version.
After a federal court in Seattle issued a broad injunction against the original policy, Trump removed major provisions and reissued the order. The new version exempted key groups, like green card and visa holders, and dropped the section that would have given Christians special treatment.
Trump also removed Iraq from the list of countries covered by the ban after the Pentagon expressed worry that it would damage the United States’ relationship with the Iraqi government in the fight against the Islamic State.
The new executive order preserves major components of the original. It halts, with few exceptions, the granting of new visas and green cards to people from six majority-Muslim countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — for at least 90 days. It also stops all refugees from entering for 120 days and limits refugee admissions to 50,000 people in the current fiscal year.