Here We Go Again: Hawaii Chal­lenges Trump’s Lat­est Im­mi­gra­tion Ban

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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.don­ald­ 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.

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