New travel ban blocked
Hawaii judge cites anti-Muslim comments; Trump blames ‘judicial overreach’
President Trump’s latest attempt to halt travel to the U.S. from selected nations with almost entirely Muslim populations was blocked Wednesday by a federal judge — less than six hours before it was to take effect — as an act of religious discrimination.
The main purpose of the president’s executive order, as shown by the countries it targeted and Trump’s own statements, was “temporarily suspending the entry of Muslims,” U.S. District Judge Derrick Watson of Hawaii said in a ruling barring enforcement of the order nationwide.
Trump’s comments during the presidential campaign, and a revealing remark by one of his advisers after taking office, provide “significant and unrebutted evidence of religious animus” behind the current order and an earlier version, also blocked by the courts, Watson said.
He cited then-candidate Trump’s proposal in December 2015 for “a total and complete shutdown of Muslims entering the United States” and Trump’s statement in a March 2016 television interview that “I think Islam hates us.” And on Jan. 28, a day after Trump’s first executive order, Watson noted, former New York Mayor Rudy Giuliani, a Trump adviser, told a television interviewer that the president wanted a “Muslim ban” and
had asked Giuliani to form a commission to “do it legally.”
Speaking shortly afterward at a rally in Nashville, Trump promised to “fight this terrible ruling” and predicted victory in the U.S. Supreme Court. He said Watson’s decision was “in the opinion of many, an unprecedented judicial overreach,” apparently referring to the judge’s refusal to endorse arguments by Justice Department lawyers that courts should not second-guess a president’s decisions on national security.
The ruling would first be appealed to the Ninth U.S. Circuit Court of Appeals in San Francisco, which last month upheld a decision by another federal judge, James Robart of Seattle, blocking Trump’s first executive order. Trump, who had previously derided Robart as a “so-called judge,” proceeded down the same path Wednesday by saying Watson’s court was “part of the much-overturned Ninth Circuit.”
Marielena Hincapié, executive director of the National Immigration Law Center, which represented refugee groups in a separate case against Trump’s revised order, called Watson’s ruling “a rejection of the politics of hate.”
The ruling came in a suit by Hawaii, which drew support from California and other states. Lawyers for Hawaii said the state was the nation’s most ethnically diverse and that the ban would cause harm to its university, its vital tourist industry, and its residents with relatives abroad who would be prevented from joining them.
In addition to participating in the Hawaii case, California was one of six states with a separate lawsuit before Robart. Other plaintiffs included four families with relatives in the targeted countries who would have been stranded by Trump’s order, and, in a separate case in Maryland, three refugee support groups.
Judges held hearings Wednesday in the Seattle and Maryland cases but did not rule on them. Even if they both upheld Trump’s order, Watson’s ruling blocking it would remain in effect unless reversed by a higher court.
The executive order, which was issued March 6 and had been scheduled to take effect early Thursday, would prohibit U.S. entry for 90 days by anyone from Iran, Libya, Somalia, Sudan, Syria or Yemen, except legal U.S. residents or those holding U.S. visas. The Trump administration says it would use that period to review screening of entrants from those nations and others and determine whether further restrictions were needed.
The order would impose a 120-day freeze on all U.S. admission of refugees, who fled violence or persecution in their homelands and have been approved for entry by federal agencies. It would also reduce U.S. admission of refugees from 110,000 to 50,000 for the fiscal year that ends Sept. 30.
Watson’s ruling returns the refugee ceiling, at least for now, to the 110,000 level set by former President Barack Obama. .
Trump’s previous order included a seventh nation, Iraq, in the 90-day ban, and did not exempt legal residents or visa-holders. It also included a provision giving priority to religious minorities for future admission of refugees, language cited by opponents in arguing that the travel ban was intended to exclude Muslims.
Robart’s ruling blocking Trump’s initial order came after a week of havoc at domestic and foreign airports, as entrants were detained and turned away and travel plans canceled. The Ninth Circuit upheld his ruling, saying the exclusions appeared to violate due process of law and might also constitute religious discrimination.
The Trump administration denounced that ruling but said it would recast the order to meet the court’s objections. Justice Department lawyers argued in court papers that the revised, scaled-back March 6 order was valid under the president’s “broad constitutional authority over foreign affairs and national security” and would bar entry “on the basis of risk of terrorism, not religion.”
At a hearing Wednesday in Greenbelt, Md., Justice Department lawyer Jeffrey Wall said the six countries were among those singled out by thenPresident Barack Obama and Congress as potential sources of terrorism, in a law requiring their residents to obtain visas to enter the United States.
“What he’s concerned about are radical Islamic terrorists,” Wall said, referring to Trump.
But opponents cited a recent draft report from Trump’s Department of Homeland Security that said the national origin of an immigrant or refugee was no indicator of terrorism.
Watson, in Wednesday’s ruling, said the administration’s claim of religious neutrality was hard to square with the “overwhelmingly Muslim populations” of the six nations — from 90.7 percent to 99.8 percent, in a 2010 survey.
It seems logical to infer, he said, that “targeting these countries likewise targets Islam.”
Rejecting the administration’s argument that any flaws in the first executive order had been cured in the revision, the judge cited a statement by presidential adviser Stephen Miller on Feb. 21, when the second order was being prepared. Miller said the new version would contain “mostly minor technical differences” but would accomplish “the same basic policy outcome” as the first executive order.
The state also argued that the timing of the new order, issued more than a month after the first order was blocked, was evidence that Trump’s assertion of antiterrorism motivation was a pretext. Watson said the delay in the second order at least “detracts from the national security urgency claimed by the administration.”
Trump reiterated his security argument Wednesday, telling supporters that his executive order was essential for “the safety and security of our people” and that “this ruling makes us look weak.”
His judicial attacks drew a rebuke Wednesday from one of the Ninth Circuit’s most conservative judges, Jay Bybee, after the appeals court refused to reconsider its earlier decision blocking Trump’s first executive order.
Bybee, joined by four colleagues, dissented, saying courts should not “peek behind the curtain” to look for the hidden motives of a president’s immigration-related decisions. But he also said that “the personal attacks on the distinguished district judge (Robart) and our colleagues were out of all bounds of civic and persuasive discourse.”