President Trump's most recent travel ban was halted yesterday evening by a federal judge in Hawaii, just hours before it was scheduled to go into effect. The executive order would have temporarily halted travel and immigration from six majority-Muslim nations, while stopping refugee resettlement generally.
In a harshly worded ruling, Judge Derrick K. Watson halted enforcement of the ban nationwide, saying that any "reasonable, objective observer" would recognize the order as disfavoring Islam, "in spite of its stated, religiously-neutral purpose".
A Muslim Ban by Any Other Name...
The State of Hawaii and Dr. Ismail Elshikh, head of the Muslim Association of Hawaii, had challenged the ban on numerous grounds -- constitutional, administrative, and statutory -- but it was their Establishment Clause claims that carried them to victory yesterday.
Issuing a temporary restraining order enjoining enforcement of the EO, the court ruled that the plaintiffs were likely to succeed on their claims that the ban instituted an unconstitutional religious preference. Applying the Lemon test, the court found that the EO does not have a primarily secular purpose.
The court rejected the government's arguments that the ban's religiously-neutral language should insulate it from First Amendment challenges. While the previous ban had privileged religious minorities (largely Christians), that provision had been dropped from the newest version, one of several changes meant to insulate the EO from judicial scrutiny.
"The illogic of the Government's contentions is palpable," the court wrote. "The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed."
Establishment Clause analysis cannot be reduced to a "purely mathematical exercise," the court said, pointing to Trump's repeated promises on the campaign trail to ban Muslim immigration.
The court further rejected the notion that looking in to the EO's motivation would require divining the president's "veiled psyche." "[T]here is nothing 'veiled' about this press release," the court explained, pointing to a Trump statement on "preventing Muslim immigration."
"Nor is there anything 'secret' about the Executive's motive specific to the issuance of the Executive Order," the court continued, quoting Rudy Giuliani's statement that he was called on to create a legal "Muslim ban" for the president.
New Issues at the Forefront and an Unrepentant President
Trump's previous ban had been blocked by a federal judge in Washington State, shortly after it went into effect. The Ninth Circuit upheld that order last month, largely on due process grounds. "The Government has not shown that the Executive Order provides what due process requires," the Ninth ruled.
Though the court touched on Washington's Establishment Clause claims briefly in its opinion and in oral arguments, it declined to rule on them, as the EO's due process failings were enough to support halting the ban.
Now, following the Hawaii ruling and with a quick appeal to the Ninth Circuit likely, those Establishment Clause questions will be at the center of dispute.
Trump, meanwhile, accused the judge of ruling against the government "for political reasons." Speaking at a rally in Nashville, the president seemed to conduct legal strategy before a crowd of hundreds. The new EO was a "watered-down version of the first one," the president said, one which was forced on him by advisors.
"And let me tell you something," the president continued, "I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place."
- States Rush to Stop Trump's New Travel Ban Before It Begins (FindLaw's U.S. Ninth Circuit Blog)
- Hawaii Sues Over New Travel Ban as Trump Drops Appeal (FindLaw's U.S. Ninth Circuit Blog)
- The Most Telling Citations From the 9th's Immigration Ban Ruling (FindLaw's U.S. Ninth Circuit Blog)