Federal District Court in Hawaii Issues Order Temporarily Blocking Two Key Sections of the March 6 Refugee Admissions/Travel Ban Executive Order
Thursday, March 16, 2017
Updated - 10:14 am on March 16, 2017
Updated - 10:14 am on March 16, 2017
 Judge Watson | A federal district court in Hawaii last night issued a nationwide order (Order) blocking the Trump Administration from implementing two key portions of the March 6, 2017, executive order on refugee admissions and travel to the United States. The action in a Hawaii courthouse was the first of what could be three rulings on the executive order that could be handed down in the coming days. |
The Order, issued by Judge Derrick K. Watson, United States District Judge for the District of Hawaii, prevents the Administration from implementing sections 2 and 6 of the March 6th executive order. Section 2 seeks to impose a 90-day ban on travel to the United States for persons possessing travel documents from six predominately-Muslim countries. Section 6 contains a number of refugee-related provisions, including one that would impose a 120-day "pause" in the admission of refugees to the United States.
At the time of this writing, two other courts -- one in Maryland and another in Seattle -- were considering arguments made to them during the day on Wednesday in lawsuits seeking to block the implementation of the executive order. They could issue rulings at any time. Indeed, there were indications during the pre-dawn hours of Thursday, March 16th, that the Court in Maryland had, indeed, decided to enjoin parts of the executive order and would be making a formal announcement after daybreak.
[UPDATE - At 7:00 am EDT on Thursday, March 16, 2017, a Federal District Court in Maryland Issued a a preliminary injunction enjoining the Administration from implementing the travel ban portion of the March 6th executive order but declining to enjoin implementation of the refugee portions of that executive order].
At the time of this writing, two other courts -- one in Maryland and another in Seattle -- were considering arguments made to them during the day on Wednesday in lawsuits seeking to block the implementation of the executive order. They could issue rulings at any time. Indeed, there were indications during the pre-dawn hours of Thursday, March 16th, that the Court in Maryland had, indeed, decided to enjoin parts of the executive order and would be making a formal announcement after daybreak.
[UPDATE - At 7:00 am EDT on Thursday, March 16, 2017, a Federal District Court in Maryland Issued a a preliminary injunction enjoining the Administration from implementing the travel ban portion of the March 6th executive order but declining to enjoin implementation of the refugee portions of that executive order].
Administration Reaction to the Hawaii Ruling. A spokeswoman for the Department of Justice declared that the ruling is "flawed both in reasoning and in scope" and said that the administration will "continue to defend this Executive Order in the courts." President Trump reacted more angrily, declaring, "This is, in the opinion of many, an unprecedented judicial overreach." He added that "This ruling makes us look weak," and he asserted that he would appeal the issue to the Supreme Court. "This is a watered-down version of the first one....I think we should go back to the first one and go all the way which is what I wanted to do in the first place," he said to a crowd i Tennessee assembled by the remnants of his 2016 presidential campaign.
The Hawaii Ruling. In issuing the TRO, Judge Watson, an appointee of President Barack Obama, wrote, "A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor. "
Continuing, Judge Watson wrote, "The Government appropriately cautions that, in determining purpose, courts should not look into the 'veiled psyche' and 'secret motives' of government decisionmakers and may not undertake a 'judicial psychoanalysis of a drafter’s heart of hearts.' Going on, the Judge wrote, "The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing 'veiled' about this press release: 'Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.''"
The Judge also relied on quotes from former New York City Mayor Rudy Guilliani and White House aide Stephen Miller in reaching his decision.
The judge quoted from the former New York Mayor, who said during a television interview that, referring to his call during the campaign for a ban on Muslims, the President had asked him to "show me the right way to do it legally." He also quoted from Miller, who said during an interview that “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].”
Wrote Judge Watson of the comments of the President and his advisors, "These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, 'secondary to a religious objective' of temporarily suspending the entry of Muslims."
The Judge concluded his Order by asserting, "When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO." He added, "Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim."
Continuing, Judge Watson wrote, "The Government appropriately cautions that, in determining purpose, courts should not look into the 'veiled psyche' and 'secret motives' of government decisionmakers and may not undertake a 'judicial psychoanalysis of a drafter’s heart of hearts.' Going on, the Judge wrote, "The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing 'veiled' about this press release: 'Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.''"
The Judge also relied on quotes from former New York City Mayor Rudy Guilliani and White House aide Stephen Miller in reaching his decision.
The judge quoted from the former New York Mayor, who said during a television interview that, referring to his call during the campaign for a ban on Muslims, the President had asked him to "show me the right way to do it legally." He also quoted from Miller, who said during an interview that “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].”
Wrote Judge Watson of the comments of the President and his advisors, "These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, 'secondary to a religious objective' of temporarily suspending the entry of Muslims."
The Judge concluded his Order by asserting, "When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO." He added, "Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim."
Broader Protections for Refugees. Overall, the Hawaii TRO is narrower than a TRO issued by a judge in Seattle late last month blocking the Administration from implementing five key sections of his January 27th refugee admissions/travel ban executive order, However, it is broader than the Seattle TRO in the protections that it affords refugees..
With respect to refugees, the Seattle TRO only blocked the Administration from implementing the January 27th' executive order's 120-day pause in refugee admissions and its bar on Syrian refugee admissions. The Hawaii TRO, on the other hand, blocks the Administration from implementing all of the refugee-related provisions contained in the March 6th Executive Order. This means that, for the time being, at least, the Administration is also blocked from implementing the March 6th Order's planned cut in refugee admissions from 110,000 to 50,000. And it also is blocked from implementing the March 6th Order's provisions giving states more say in what refugees are resettled within their borders.
With respect to refugees, the Seattle TRO only blocked the Administration from implementing the January 27th' executive order's 120-day pause in refugee admissions and its bar on Syrian refugee admissions. The Hawaii TRO, on the other hand, blocks the Administration from implementing all of the refugee-related provisions contained in the March 6th Executive Order. This means that, for the time being, at least, the Administration is also blocked from implementing the March 6th Order's planned cut in refugee admissions from 110,000 to 50,000. And it also is blocked from implementing the March 6th Order's provisions giving states more say in what refugees are resettled within their borders.
The March 6 Executive Order. Among other things, the March 6th executive order that the Hawaii TRO has now partially blocked, cuts refugee admissions to the United States by 60 percent for the current fiscal year; halts refugee admissions to the United States, altogether, for 120 days while the Administration undertakes a study of the security of the U.S. refugee admissions program (USRAP); bars for 90 days travel to the United States for the passport holders from six predominately-Muslim countries pending a study of security procedures with respect to the admission of nationals from those countries; and implements a yet-to-be-defined regime of “extreme vetting” for all persons seeking entry to the United States.
The March 6th executive order was scheduled to replace the embattled January 27th executive order at Midnight tomorrow, the date and time on which the March 6th executive order was supposed to to into effect.
The March 6th executive order was scheduled to replace the embattled January 27th executive order at Midnight tomorrow, the date and time on which the March 6th executive order was supposed to to into effect.
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