U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Temporary Bar on Trump's New Travel Ban Is Now Much Less Temporary

Two weeks ago, a district court in Hawaii issued a temporary restraining order, barring the implementation of President Trump's most recent travel ban while the state contested its constitutionality. Now that bar is much less temporary. Yesterday, Judge Derrick Watson agreed to convert that TRO into a preliminary injunction, one that will continue to block the rollout of Trump's ban for the foreseeable future.

That means it's aloha to the TRO and aloha to a longer-lasting PI.

Another Defeat for Trump's Travel Ban

In granting the initial TRO, Judge Watson concluded that the State of Hawaii and Dr. Ismail Elshikh, head of the Muslim Association of Hawaii, had demonstrated a strong likelihood of success in their challenge to Trump's executive order. That executive order, similar to the one before it, barred travel and immigration from six majority-Muslim nations. Any "reasonable, objective observer" could see that the order was motivated by anti-Islam animus, the judge explained, "in spite of its stated, religiously-neutral purpose." He halted enforcement of the EO nationwide.

Yesterday's ruling comes to a similar conclusion. Again, Hawaii and Dr. Elshikh have established "a strong likelihood of success on the merits of the Establishment Clause claim," Judge Watson concluded.

Court Refuses to "Crawl Into a Corner"

This isn't terribly surprising, given that the standards for issuing a TRO and PI are the same. But in so ruling, the court soundly rejected one of the government's main arguments -- namely, that the president's past statements and the context of the travel ban's issuance can't be considered, that courts must look at the ban itself alone. Judge Watson had relied heavily on such evidence, including Trump's repeated call for a Muslim ban, in halting the EO. Here, Judge Watson writes:

[W]here the "historical context and 'the specific sequence of events leading up to'" the adoption of the challenged Executive Order are as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder the Government urges the Court to altogether ignore that history and context. The Court, however, declines to do so.

If that was not strong enough, he continues: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."

The PI, like the TRO, is limited to sections 2 and 6 of the travel ban. Those sections barred entry from citizens of six countries and suspended the resettlement of refugees, respectively. The PI will remain in place as the litigation continues.

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