As soon as I finished my latest email newsletter, highlighting Trump’s revised travel ban, a federal judge in Hawaii put the ban on hold. It’s hard to press the newsletter “send” button these days because updates become outdated at warp speed. Here’s the latest (as of March 16, 2017, 10am Pacific Time!).
On March 15 Judge Derrick Watson in Hawaii granted a Temporary Restraining Order (TRO) to block the implementation of Trump’s revised Executive Order. The order, which bans travel from six Muslim-majority countries, was stopped hours before the order was to go into effect. This is not a permanent ban, it’s just the first step in what’s likely to be lengthy litigation and appeals, as the Trump administration appears determined to proceed with the revised, or maybe even parts of the original, order. The opinion is strongly worded and interesting to read: State of Hawaii vs Trump CV.NO. 17-00050 DKW-KSC
The Government argued that the revised order makes no mention whatsoever of religion and includes the national security reasoning for the ban. It said the court should look only at the order itself and not the context or background to it. On the other side, the State of Hawaii and Dr. Ismail Elshikh, the plaintiffs who brought the suit, say the background can’t be ignored. The order was always intended as a ban on Muslims entering the country and that purpose remains. Therefore, they argue, it violates the Establishment Clause of the First Amendment to the U.S. Constitution. They contend the national security justifications in the order are mere pretexts for the discriminatory intent. The judge decided for the plaintiffs and said they had a strong case on the merits on the Establishment Clause ground. He cited the case of Larson v. Valente, 456 U.S. 228, 244 (1982): “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
My favorite part of the judge’s opinion begins on page 34 (my highlights):
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.” … 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.” …(Dec. 7,2015), … Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order: Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”…. On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “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].” …
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 … 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 said it’s possible the President can issue an order that will pass legal scrutiny: …”it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation.”
There will be further litigation in this case, and there are cases pending in other courts as well. In the meantime, the travel ban’s sections 2 and 6 are not in force. As the President tweeted after the 9th Circuit Court of Appeals decided against his first order (2/9/27): See You In Court!