Federal District Court in Hawaii Extends Bar on Implementation of Executive Order's Travel Ban and Refugee Admissions Pause Until Lawsuit is Resolved
Thursday, March 30, 2017
A federal district court in Hawaii late last night dealt the most serious blow yet to President Trump's attempt to impose a 90-day long travel ban for travelers from six predominantly-Muslim countries, bar refugee admissions from all countries for 120 days, and reduce the number of refugees who may be admitted to the United States in the current fiscal year from 110,000 to 50,000 |
The Court did so by converting what had been a temporary restraining order (TRO) barring the Trump Administration from implementing key portions of the President's March 6, 2017, revised refugee admissions/travel ban executive order into a preliminary injunction. Absent intervention from a higher court, the ruling effectively blocks the implementation of much of the embattled executive order until the lawsuit challenging it is resolved.
The Preliminary Injunction. The 23-page long order was handed down by Judge Derrick Watson late in the evening on Wednesday, March 29, 2017, after a morning in which the Court heard from lawyers for the state of Hawaii and the U.S. Department of Justice arguing opposing sides of the case. The Administration will now weigh its options, which include appealing the injunction to the 9th Circuit Court of Appeals, attempting a direct appeal to the Supreme Court of the United States, and simply waiting out the injunction while the lawsuit is resolved. It has appealed another case, in Maryland, that has issued a more narrow bar to implementation of the executive order, to the 4th Circuit Court of Appeals in Richmond.
In his ruling, Judge Watson wrote, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief."
The Department of Justice had urged the Court to narrow its previous ruling and only apply an injunction to the 90-day travel ban. The Court, however, rejected the Department of Justice's pleadings, relying heavily on comments made by President Trump, himself, during his campaign and after previous court rulings, as well as relying on comments made by campaign surrogates an White House staff.
In rejecting the Department of Justice request to exclude the refugee provisions in Section 6 of the executive order from the Court's preliminary injunction, Judge Watson wrote, "It makes little sense to do so. That is because the entirety of the Executive Order runs afoul of the Establishment Clause where “openly available data support[] a commonsense conclusion that a religious objective permeated the government’s action,” and not merely the promulgation of Section 2(c)." Continuing, the judge wrote, "Put another way, the historical context and evidence relied on by the Court, highlighted by the comments of the Executive and his surrogates, does not parse between Section 2 and Section 6, nor does it do so between subsections within Section 2. Accordingly, there is no basis to narrow the Court’s ruling in the manner requested by the Federal Defendants."
The Department of Justice had urged the Court to narrow its previous ruling and only apply an injunction to the 90-day travel ban. The Court, however, rejected the Department of Justice's pleadings, relying heavily on comments made by President Trump, himself, during his campaign and after previous court rulings, as well as relying on comments made by campaign surrogates an White House staff.
In rejecting the Department of Justice request to exclude the refugee provisions in Section 6 of the executive order from the Court's preliminary injunction, Judge Watson wrote, "It makes little sense to do so. That is because the entirety of the Executive Order runs afoul of the Establishment Clause where “openly available data support[] a commonsense conclusion that a religious objective permeated the government’s action,” and not merely the promulgation of Section 2(c)." Continuing, the judge wrote, "Put another way, the historical context and evidence relied on by the Court, highlighted by the comments of the Executive and his surrogates, does not parse between Section 2 and Section 6, nor does it do so between subsections within Section 2. Accordingly, there is no basis to narrow the Court’s ruling in the manner requested by the Federal Defendants."
The Injunction's Broad Protections for Refugees. With respect to refugees, the preliminary injunction prevents the Administration from implementing any of the provisions in Section 6 of the President's revised refugee admissions/travel ban executive order. This includes the following subsections of the executive order:
- 120 Day Suspension in Refugee Admissions. The 120-day suspension in refugee admissions (found in section 6(a) of the Order).
- Review of Refugee Application and Adjudication Procedures. The review of the U.S. Refugee Admissions Program application and adjudication processes during the 120-day suspension in order to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States (found in Section 6(a) of the Order).
- Implementation of New Procedures. The mandate that new refugee application and adjudication procedures be implemented following the 120-day review period (found in Section 6(a) of the Order).
- Reduction of Number of Refugees Admitted to the U.S. The reduction in the number of refugees admitted to the United States during fiscal year 2017 from the 110,000 goal established by President Obama to 50,000 (found in Section 6(b) of the Order).
- State and Local Government Say in Refugee Resettlement. The requirement that state and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees and the requirement that a process be devised to "lawfully promote such involvement" (found in Section 6(d) of the Order).
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