Here We Go Again: Hawaii Challenges Trump’s Latest Immigration Ban
Muslim refugees. Photo: IHH, CC
Poor Donald Trump. He just wants to ban all Islamic immigrants from coming to the United States and no one will give him a break – least of all those pesky politically charged entities known as the courts and the citizenry of the United States.
In the January 2017 fiasco in which newly elected President Donald Trump attempted to ban immigrants from a handful of primarily Islamic countries, the U.S. courts sent him a strong message that his order was unconstitutional. The grounds were several, including that the ban would unnecessarily burden a number of groups of individuals who in the past had relatively straightforward access to entering the United States. It also cited what was one of Trump’s clear intents of the ban, which was to keep a specific religious affiliation – Muslims – from entering the United States as immigrants, even on a temporary basis.
That last item, according to the courts, clearly violates the equal protection clause and religious freedom rights guaranteed in the U.S. Constitution. The arguments from the U.S. Court of Appeals that presented the most damning case against Trump et al also cited the whole issue of “intent.” The situation revolved around that issue, regardless of what President Trump may claim now in just wanting to protect the United States, since he had previously declared his intent to block all Muslim immigrants while as candidate Trump and his trusted advisor Rudy Giuliani had said publicly that his now dear friend President Donald Trump wanted to do just that. Trump had already told the country he wanted to block immigrants based on religious affiliation.
With that topic having overtaken all press about the White House and it looking likely that if the Trump administration takes this to the Supreme Court, that court will likely hand him a big “no” from on high, Trump and his allies decided to retrench for a bit.
But Trump is back with a new block on immigration via his March 6, 2017, Executive Order.
The latest ban, which looks a lot like the old ban in naming mostly the same countries, tried to reach partial resolution with those Trump had angered by allowing those with existing green cards and other visas from the specified nations to continue to travel unaffected.
But everyone knows Mr. Trump’s heart is in exactly the same place and is still, with respect to Islamic immigrants at least, “two sizes too small,” as the old Dr. Seuss book referred to the evil Mr. Grinch in How the Grinch Stole Christmas.
The new ban leaves things very much in the same place as before – and lawsuits to challenge it are now being filed.
The State of Hawaii has the distinguished honor of being the first to file a lawsuit challenging the new ban and requesting an immediate temporary restraining order (TRO) to block it.
The case, Civil Action No. 1:17-CV-00050DKW-KJM, lists as plaintiffs the State of Hawaii and Ismail Elshikh. As defendants, it lists DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA.
The case filing lays out the situation quite clearly and is worth sharing:
1. The State of Hawaii (the “State”) brings this action to protect its residents, its employers, its educational institutions and its sovereignty against illegal actions of President Donald J. Trump and the federal government, specifically President Trump’s March 6, 2017, Executive Order, “Protecting the Nation From Foreign Terrorist Entry into the United States” (the “Executive Order”). Plaintiff Ismail Elshikh, PHD, the Imam of the Muslim Association of Hawaii, joins the State in its challenge because the Executive Order inflicts a grave injury on Muslims in Hawaii, including Dr. Elshikh, his family and members of his Mosque.
2. President Trump’s original Executive Order, dated January 27, 2017, blocked the entry into the United States, including Hawaii, of any person from seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. His new Executive Order also blocks the entry into the United States, including Hawaii, of nationals from six of the same countries – all except for Iraq – as long as those individuals do not have a valid U.S. visa as of the effective date of the Executive Order or did not have one as of 5:00 p.m. EST on January 27, 2017. In other words, the Executive Order means that no prospective visa holder from the six designated countries will be able to enter the United States. This second Executive Order is infected with the same legal problems as the first Order – undermining bedrock constitutional and statutory guarantees.
3. The Executive Order means that thousands of individuals across the United States and in Hawaii who have immediate family members living in the affected countries will now be unable to receive visits from those persons or to be reunited with them in the United States. It means that universities, employers and other institutions throughout the United States and in Hawaii will be unable to recruit or to welcome qualified individuals from the six designated countries. It threatens certain non-citizens within the United States and in Hawaii with the possibility that they will be unable to travel abroad and return, for instance, because their visa only permits them one entry or because their visa will have expired during the time the Executive Order is still in place.
4. President Trump’s Executive Order is subjecting a portion of Hawaii’s population, including Dr. Elshikh, his family and members of his Mosque, to discrimination and second-class treatment, in violation of both the Constitution and the Immigration and Nationality Act. The Order denies them their right to associate with family members overseas on the basis of their religion and national origin. And it results in their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.
5. The Executive Order bars students, tourists, family members and other visitors from the State on grounds that Congress and the Constitution have expressly prohibited. It is damaging Hawaii’s institutions, harming its economy and eroding Hawaii’s sovereign interests in maintaining the separation between church and state as well as in welcoming persons from all nations around the world into the fabric of its society.
As with the previous ban, a major part of Hawaii’s arguments about the unconstitutional nature of the ban lean on President Trump’s intent in creating both the previous and the latest order. The following clauses again come directly from Hawaii’s court filing on this matter and are well worth sharing.
From the section entitled “ALLEGATIONS,” the state cites the following:
A. President Trump’s Campaign Promises.
35. President Trump repeatedly campaigned on the promise that he would ban Muslim immigrants and refugees from entering the United States, particularly from Syria, and maintained the same rhetoric after he was elected.
36. On July 11, 2015, Mr. Trump claimed (falsely) that Christian refugees from Syria are blocked from entering the United States. In a speech in Las Vegas, Mr. Trump said: “If you’re from Syria and you’re a Christian, you cannot come into this country, and they’re the ones that are being decimated. If you are Islamic . . . it’s hard to believe, you can come in so easily.”
37. On September 30, 2015, while speaking in New Hampshire about the 10,000 Syrian refugees the Obama administration had accepted for 2016, Mr. Trump said, “If I win, they’re going back!” He said, “They could be ISIS,” and referred to Syrian refugees as a “200,000-man army.”
38. On December 7, 2015, shortly after the terror attacks in Paris, Mr. Trump issued a press release entitled “Donald J. Trump Statement on Preventing Muslim Immigration.” The press release stated, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States . . . .” The release asserted that “there is great hatred towards Americans by large segments of the Muslim
population.” The press release remains accessible on www.donaldjtrump.com as of this filing.
39. The next day, when questioned about the proposed “shutdown,” Mr. Trump compared his proposal to President Franklin Roosevelt’s internment of Japanese Americans during World War II, saying, “[Roosevelt] did the same thing.” When asked what the customs process would look like for a Muslim noncitizen attempting to enter the United States, Mr. Trump said, “[T]hey would say, are you Muslim?” The interviewer responded, “And if they said ‘yes,’ they would not be allowed into the country.” Mr. Trump said, “That’s correct.”
40. During a Republican primary debate in January 2016, Mr. Trump was asked about how his “comments about banning Muslims from entering the country created a firestorm” and whether he wanted to “rethink this position.” He said, “No.”
41. A few months later, in March 2016, Mr. Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, “Is there a war between the West and radical Islam, or between the West and Islam itself?” He replied: “It’s very hard to separate. Because you don’t know who’s who.”
42. Later, as the presumptive Republican nominee, Mr. Trump began using racially neutral language, at times, to describe the Muslim ban. Following the mass shootings at an Orlando nightclub in June 2016, Mr. Trump gave a speech promising to “suspend immigration from areas of the world where there’s a proven history of terrorism against the United States, Europe or our allies until we fully understand how to end these threats.” But he continued to link that idea to the need to stop “importing radical Islamic terrorism to the West through a failed immigration system.” He said that “to protect the quality of life for all Americans – women and children, gay and straight, Jews and Christians and all people then we need to tell the truth about radical Islam.” And he criticized Hillary Clinton for, as he described it, “her refusal to say the words ‘radical Islam,’” stating: “Here is what she said, exact quote, ‘Muslims are peaceful and tolerant people and have nothing whatsoever to do with terrorism.’ That is Hillary Clinton.” Mr. Trump further stated that the Obama administration had “put political correctness above common sense” but said that he “refuse[d] to be politically correct.”
43. Mr. Trump’s June 2016 speech also covered refugees. He said that “[e]ach year the United States permanently admits 100,000 immigrants from the Middle East and many more from Muslim countries outside of the Middle East. Our government has been admitting ever-growing numbers, year after year, without any effective plan for our own security.” He issued a press release stating, “We have to stop the tremendous flow of Syrian refugees into the United States.”
44. Later, on July 24, 2016, Mr. Trump was asked: “The Muslim ban. I think you’ve pulled back from it, but you tell me.” Mr. Trump responded: “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”
45. During an October 9, 2016, Presidential Debate, Mr. Trump was asked: “Your running mate said this week that the Muslim ban is no longer your position. Is that correct? And if it is, was it a mistake to have a religious test?” Mr. Trump replied, “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, “It’s called extreme vetting.”
46. Then, on December 21, 2016, following terror attacks in Berlin, Mr. Trump was asked whether he had decided “to rethink or re-evaluate [his] plans to create a Muslim registry or ban Muslim immigration to the United States.” Mr. Trump replied: “You know my plans. All along, I’ve been proven to be right.”
In the actual court filing for this case, every one of these quotes are fully documented with detailed references.
How this will all be sorted out in the courts is as yet unclear. But with President Trump attacking immigration on so many fronts right now, it seems clear that he is arming himself for a massive fight.
And – unfortunately – the other thing that seems very clear is that President Trump acts like a religious bigot and seems to have no respect for the Constitution he has sworn to uphold.