In what’s been called a “blistering” 43-page opinion, US District Court for the District of Hawaii Judge Derrick K. Watson Wednesday afternoon issued a temporary restraining order on issuance of new visas to citizens of six-Muslim majority countries and suspending admission of new refugees under President Trump’s second extreme vetting Executive Order.
Homeland Security Today reported Tuesday it took no time for court challenges to be filed within days of President Trump issuing his revised extreme vetting Executive Order as his administration dismissed the pending Ninth Circuit Court of Appeal’s continued consideration of the injunction on his initial Executive Order.
Hawaii Attorney General Doug Chin was the first to “file a motion for a temporary restraining order in its federal lawsuit against President Donald Trump, following the new Executive Order banning travel from six Muslim-majority nations …”
Chin’s “filings ask the court to declare that sections 2 and 6 of the March 6, 2017 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. It is scheduled to become effective on March 16, 2017.”
Chin said, “We all want safety and security in our state. But discrimination against people based on national origin or religion is a very dark path we must never accept. Respectfully, the new order fails to fix the initial defect.”
In response, Watson ruled Trump’s comments and those of close advisors served as evidence the order was meant to discriminate against Muslims.
Watson ruled that “a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.”
He opined that, “It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation,” and that “… the government defends the Executive Order principally because of its religiously neutral text —‘[i]t applies to six countries that Congress and the prior administration determined posed special risks of terrorism. [The Executive Order] applies to all individuals in those countries, regardless of their religion’ … and that, “By its reading, the Executive Order could not have been religiously motivated because ‘the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9 percent of the global Muslim population … [T]he suspension covers every national of those countries, including millions of non-Muslim individuals[.]’”
However, Watson found that, “The illogic of the government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its establishment Clause analysis to a purely mathematical exercise … ‘the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution.’"
"Equally flawed," Watson ruled, " is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source upon which the government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7 percent to 99.8 percent. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the government does, that it does not.”
Continuing, Watson declared, “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.”
He added, “the government’s assertion of the national security need for the order was ‘at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims,” noting Trump’s comments during his campaign and comments and public statements by advisors as evidence “religious animus” rather than the national security reasoning of his Executive Order.
“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,” Watson declared.
Nowhere, however, did Watson’s ruling – nor did the previous courts’ suspension of Trump’s original Executive Order, address the President’s authority, which he exercised under Article II of the Constitution and under section 212(f) of the INA [Immigration and Nationality Act], which provides in relevant part: ‘Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate’ 8 U.S.C. 1182(f).’”
The Department of Homeland Security also earlier stressed that, “Congress provided the President of the United States, in section 212(f) of the INA, with the authority to suspend the entry of any class of aliens the President deems detrimental to the national interest. This authority has been exercised repeatedly for decades, and has been a component of immigration law since the enactmentof the original INA in 1952.”
In fact, Watson said the revised Executive Order is in “violation of the INA due to discrimination on the basis of nationality, and exceeding the President’s authority under Sections 1182(f) and 1185(a), as well as “substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act [RFRA], 42 U.S.C. § 200bb-1(a); substantive violation of the Administrative Procedure Act [APA] 5 U.S.C. § 706 (2)(A)–(C), through violations of the Constitution, INA and RFRA; and procedural violation of the APA, 5 U.S.C. § 706 (2)(D).”
Dan Stein, president of the Federation for American Immigration Reform (FAIR), said, “Today, once again, an unelected judge has stepped in and usurped the power and responsibility that our Constitution gives to the president. The plenary power of the president is clear, our national security is at stake and this ruling sets a dangerous precedent which reduces the plenary power of the president to deny entry to any alien or class of aliens the president deems to not be in the national interest.”
“President Trump’s Executive Order of March 6 is narrowly tailored to address legitimate national security concerns identified by both his administration and those of his predecessor,” Stein said, noting, “The intent of the temporary pause in admission of citizens of nations deemed to harbor or support international terrorism is to ensure that we have the ability to effectively screen out those who might pose a danger. Protecting the security of the nation is the president’s foremost responsibility.”
Stein urged “the Trump administration to seek immediate review of this ruling before the United States Supreme Court. There is vast court precedent affirming the authority of the president to restrict the entry of foreign nationals to the United States. Moreover, the threats to national security, enumerated by officials of both the Trump and Obama administrations, demand an expedited decision by the nation’s highest court. The security of the nation and the integrity of our constitutional system of government are at stake. This decision is without precedent, and constitutes a national emergency because courts would now appear to be forcing the country to accept possible terrorists.”
Opponents had a different take this evening.
Marielena Hincapié, executive director of the National Immigration Law Center, said, “This is a great moment for our country and an especially victorious moment for immigrants. We are elated that our federal courts have stopped Trump from implementing his discriminatory Muslim ban, another attempt by this administration to use the politics of fear and hate to enact a xenophobic agenda. Once again the rule of law has prevailed. If these policies had been allowed to take effect, our nation’s values would have been forever tarnished. The federal district court showed that no one, not even President Trump, is above the Constitution. Trump’s other proposed and signed Executive Orders are a blueprint that are attempting to redefine who we are as Americans, and we will continue to fight back.”
Deepa Iyer, Senior Fellow at Center for Social Inclusion, said, “The decision in Hawaii v. Trump reflects what we already know to be true: that the Muslim ban is a discriminatory policy that separates families, stigmatizes people of the Muslim faith, targets people simply based on where they were born, and creates an environment that leads to bias and hate violence against those targeted by the federal government. The court’s decision also reflects what the resistance movement already knows: Yemeni bodega owners and South Asian cab drivers at JFK, airport lawyers at Dulles and young Muslim activists have made it clear that we will not accept bans, raids and walls in our communities. This decision is a victory for everyone who stands for dignity and justice."