Federal judge grants Hawaii’s TRO challenging Trump’s revised travel ban

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A federal judge Wednesday granted a temporary restraining order filed by the State of Hawaii that puts the revised travel ban signed by President Donald Trump on hold.

Arguments were heard by a federal court judge at 9:30 a.m. in Honolulu. The attorneys for the federal government were heard by phone.

During the hearing, the attorney for the federal government argued that the travel ban doesn’t say anything about religion and doesn’t draw any religious distinctions. The ban would apply to six countries: Iran, Syria, Somalia, Sudan, Libya, and Yemen.

In his opinion, U.S. District Court Judge Derrick Watson wrote:

“For purposes of the instant Motion for TRO, the State has preliminarily demonstrated that: (1) its universities will suffer monetary damages and intangible harms; (2) the State’s economy is likely to suffer a loss of revenue due to a decline in tourism; (3) such harms can be sufficiently linked to the Executive Order; and (4) the State would not suffer the harms to its proprietary interests in the absence of implementation of the Executive Order. Accordingly, at this early stage of the litigation, the State has satisfied the requirements of Article III standing.”View the full opinion here.

The ruling comes as the president’s revised executive order was scheduled to take effect at 12:01 a.m. EDT on Thursday, March 16.

“It appeared that the judge was not willing to buy the federal government’s contention that what they needed to do was stick to the neutral language that was in the second executive order, or what they were referring to as neutral language,” said Attorney General Douglas Chin. “Clearly to Judge Watson, we heard it in his questions this morning, but I think we could see it in black and white in his order. He was very focused on a lot of what had been said beforehand, to say that it couldn’t just be cured by simply inserting a lot of neutral language and then asking everybody to pretend it didn’t happen.

“I think what I saw even further is it seemed like Judge Watson took it even one step further where he noted in the decision that it actually appears that the fact that there was such great pains to make the language more neutral actually served as a pretext. It actually showed that they were trying even harder to mask what was a religious animus (hostility),” Chin added.

“This ruling makes us look weak, which by the way, we no longer are,” Trump declared while speaking at a rally in Nashville. “We’re going to fight this terrible ruling. We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court. We’re going to win. We’re going to keep our citizens safe and regardless, we are going to keep our citizens safe. Believe me.”

“What you’re actually seeing is you’re seeing the strength of the American system,” Chin countered. “That essentially what is happening is that we have the kind of robust and educated and productive kind of system where if there are decisions, there’s an ability to challenge that decision, and either have the courts look at something, or to be able to have Congress look at something, or to be able to have attorneys general to be able to challenge it or to be able to have public do something, so I disagree with the statement, respectfully. I think actually what you’re seeing now is the system working, and we’re committed to the process.”

What do others think? We spoke with the governor, Hawaii’s Congressional delegation, an immigration attorney, the Muslim Association of Hawaii, and more. View their reactions here.

Chin said the state of Hawaii filed a motion for a temporary restraining order in its federal lawsuit against Trump, following the new executive order banning travel from six Muslim-majority nations issued earlier on March 6.

“It does appear that Judge Watson reached his decision on constitutional grounds. It was based upon the establishment clause, and even though he asked certain questions during the hearing about some of the other claims we’ve raised, what he did in the order is he declined to rule on the other types of claims that we brought,” Chin said.

In addition to the State of Hawaii, Ismail Elshikh is a plaintiff in the case — an American citizen of Egyptian descent who has been a resident of Hawaii for over a decade, the Imam of the Muslim Association of Hawaii, and a leader within Hawaii’s Islamic community. His mother-in-law, also Muslim, is a Syrian national without a visa, who last visited the family in Hawaii in 2005.

In September 2015, Elshikh’s wife filed an I-130 Petition for Alien Relative on behalf of her mother — an application that was put on hold during the previous executive order.

The ruling states that “according to Plaintiffs, despite her pending visa application, Dr. Elshikh’s mother-in-law would be barred in the short-term from entering the United States under the terms of Section 2(c) of the Executive Order, unless she is granted a waiver, because she is not a current visa holder. Dr. Elshikh has standing to assert his claims, including an Establishment Clause violation.”

The ruling goes on to say that “’Muslims in the Hawaii Islamic community feel that the new Executive Order targets Muslim citizens because of their religious views and national origin. Dr. Elshikh believes that, as a result of the new Executive Order, he and members of the Mosque will not be able to associate as freely with those of other faiths.’ These injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context.”

Last week, Chin told KHON2 representing the people of Hawaii is still his top priority. However, he also said it would be disrespectful to the state’s history if his office stayed silent on this issue.

Chin argued that the revised order “still has the same nation-of-origin discrimination problems it had before.” He noted that “there’s also a lot of memories that people (in Hawaii) have of nation-of-origin discrimination, including Japanese internment camps, so we really felt like we needed to challenge this order.”

The state has budgeted $150,000 to fight the executive order, but Chin said that number could increase.

Chin said the lawsuit isn’t just about standing up to discrimination, but keeping checks and balances as well as preserving Hawaii’s tourism.

View the documents: Second amended complaint | Motion for TRO | Memo in support

The filings ask the court to declare that sections 2 and 6 of the Executive Order signed by President Trump are contrary to the Constitution and laws of the United States. The complaint asks for a nationwide injunction preventing the implementation of these sections of the Executive Order.

The Executive Order restricts immigration from Iran, Syria, Somalia, Sudan, Libya, and Yemen. It suspends all refugee admission for 120 days.

“What’s significant about that is that’s actually before the order is supposed to take effect, so on both sides it’s ‘Let’s get a chance to litigate this before it goes into effect,’ and then that way we avoid the chaos of, do we not have an injunction, you know, a lot of those issues,” Chin said. “We would love it if the president could come up with an order that protects our borders, that protects our national security in a way that doesn’t discriminate against people based upon their nation of origin or their religion. That’s just unconstitutional.”

In the filings, Hawaii argues the following:

“[W]hile the President signed a revised version on March 6 . . . we still know exactly what it means. It is another attempt by the Administration to enact a discriminatory ban that goes against the fundamental teachings of our Constitution and our immigration laws, even if it is cloaked in ostensibly neutral terms. Strikingly, the Executive Order even admits that these changes were designed to ‘avoid * * * litigation.’

Nothing of substance has changed: There is the same blanket ban on entry from Muslim-majority countries (minus one), the same sweeping shutdown of refugee admissions (absent one exception), and the same lawless warren of exceptions and waivers. The courts did not tolerate the Administration’s last attempt to hoodwink the judiciary, and they should not countenance this one.”

The second amended complaint alleges the following causes of action:

  • Defendants have violated the establishment clause of the First Amendment.
  • Defendants have violated the equal protection, substantive due process, and procedural due process guarantees of the Fifth Amendment.
  • Sections 2 and 6 of the March 6, 2017 Executive Order violate the Immigration and Nationality Act by discriminating on the basis of nationality, ignoring and modifying the statutory criteria for determining terrorism-related inadmissibility, and exceeding the President’s authority under the Immigration and Nationality Act.
  • Defendants have violated the Religious Freedom Restoration Act by imposing a substantial burden on the exercise of religion.
  • Defendants have violated the substantive and procedural requirements of the Administrative Procedure Act.

Hawaii previously filed a lawsuit against the federal government, but it was put on hold when the courts blocked the first travel ban.

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