JUDGE HALTS NEW BAN ON TRAVEL
A federal jurist in Hawaii blocks Trump’s revised order hours before it was set to go into effect.
A federal judge in Hawaii has blocked the major provisions of President Trump’s revised ban on refugee resettlement and travel from six predominantly Muslim countries, hours before the executive order was to take effect.
The decision has at least temporarily struck down the Trump administration’s attempt to pause all refugee resettlement for 120 days and block citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S.
U.S. District Judge Derrick Watson said his ruling applies nationwide. It appears to set the stage for a battle in the 9th Circuit Court of Appeals, which last month upheld a ruling blocking Trump’s original travel ban.
The case, brought by Hawaii Atty. Gen. Douglas Chin, argued that the latest travel ban would have “profound” and “detrimental” effects on residents, businesses and universities. In its complaint, the state of Hawaii also said the executive order discriminates against Muslims and violates the equal protection and due process guarantees of the U.S. Constitution.
Lawyers for the state also argued that the order illegally discriminates based upon nationality.
Arguing that Hawaii residents would be unfairly affected by the ban, lawyers cited the example of Ismail Elshikh, a naturalized U.S. citizen who is the imam of the Muslim Assn. of Hawaii. His mother-in-law is a national of Syria and would be barred from seeing her sonin-law, which the suit argues is a violation of due-process
rights.
The hearing was among four court proceedings Wednesday in which the travel ban came under attack. There were two hearings in Seattle and another in Greenbelt, Md.
Lawyers challenging the ban — which was scheduled to begin at 12:01 a.m. Eastern time Thursday — asked judges to put it on hold while the courts decided its constitutionality.
Lawyers for the Department of Justice argued that the travel ban was necessary for national security and that it was well within the president’s powers to restrict immigration to protect the nation. The aim, they said, was to screen out visitors from countries affected by terrorism until more stringent vetting measures could be put in place.
Government lawyers said that the travel ban, a revised version of the Jan. 27 executive order that was blocked by federal courts, was modified enough to remove any legal concerns from judges.
The original order spurred tens of thousands of visa cancellations, chaos at U.S. international airports and dozens of lawsuits.
That order stopped refugee resettlement from all countries for 120 days — and from Syria indefinitely — and banned citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S. for 90 days while the government was to review its vetting procedures.
A federal judge in Seattle halted that order in February after hearing arguments that it was discriminatory against Muslims and negatively impacted Washington state’s universities, businesses and residents. His decision was upheld by the 9th Circuit.
The new order tried to address court concerns by removing a preference for refugees who are religious minorities and giving exemptions from the ban to green-card holders and those who already have valid visas.
It also removed Iraq from the list of countries whose citizens would be barred. Iraq, as a U.S. partner in the fight against Islamic State, took deep offense to a blanket ban against its citizens. The Trump administration says it had reviewed vetting procedures in Iraq and was satisfied with them.
Legal experts had predicted the new travel ban would be tougher to fight in court because of the president’s broad authority over immigration enforcement and national security when it comes to noncitizens and those without visas.
UC Irvine Law School Dean Erwin Chemerinsky described the new order as “certainly better drafted than the prior version” but said courts could find it to run “afoul of the 1965 Immigration Act, which prohibits discrimination based on national origin.”
“Based on prior statements of President Trump that Christians would be allowed in, this still can be challenged as a Muslim ban,” he said. “Put simply, it corrects some of the problems courts found with the prior executive order, but many of the serious problems remain.”
Pepperdine University law professor Douglas Kmiec, a Justice Department official in the Reagan and George W. Bush administrations, said the new travel rules were “clearly more defensible” than the prior ones.
“In matters of foreign affairs, the judiciary will defer to the president so long as his actions have a conceivable rational basis and do not transgress either the Constitution or statutory limitation,” he said.
Still, he said, “it can be legitimately asked — given existing vetting procedures — whether an executive order is needed at all.”
Arguments in court Wednesday centered on the federal government’s argument that the order is a matter of national security, questions about the potential harm it could cause, and who has legal standing to sue.
The Maryland lawsuit — filed by the International Refugee Assistance Project on behalf of immigrants from Syria, Somalia and Iran whose spouses and families are in the middle of the visa approval process — argues that the new order would prevent family reunification and discriminate on the basis of religion.
During nearly two hours of arguments, Judge Theodore D. Chuang closely questioned both sides, pushing the government to explain how the reworked measure would address previous legal challenges and the plaintiffs to explain when a court can step into a matter of national security.
“The government says the executive order is to protect the public,” he said. “On what basis can I overrule that?”
The plaintiffs in one of the Seattle cases are immigrants from Somalia and Syria whose relatives have pending visa applications. Their suit pointed to campaign statements by Trump — such as his vow to suspend any Muslims from entering the U.S. — as evidence that the ban was intended to target Muslims.
In the other Seattle case heard Wednesday, the plaintiff was Washington state and the judge was James Robart.
He is the same judge who on Feb. 3 ordered a national halt to the first travel ban in a case brought by Washington and Minnesota.
On Wednesday, he declined the states’ request to extend his restraining order against the first ban to apply to the new order.