When the White House issued a revised executive order on immigration from Muslim-majority countries, we wondered whether President Trump's new travel ban would suffer the same fate as his old one, which was blocked by a unanimous federal appeals court. Now we have our answer, mere hours before the ban was set to go into effect.
U.S. District Judge Derrick Watson in Hawaii issued a temporary restraining order against enforcement of the travel ban and pulled no punches in his opinion, saying, "Any reasonable, objective observer would conclude ... 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."
Spoken and Unspoken Animus
Judge Watson was emphatic that the Trump administration could not hide behind facially religion-neutral language, and that, even though the executive order never mentioned Muslims specifically, it was clear who was being targeted by the travel ban. Watson cited Trump's campaign statements as well as those from associates when looking for the motivation for the order. (A campaign press release was titled "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States" and Rudy Giuliani admitted, "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.'")
Even as administration officials would be expected to distinguish the new, hopefully legal order from the old, illegal one, they asserted it would be the same:
On February 21, Senior Advisor to the President, Stephen Miller, told Fox News that the new travel ban would have the same effect as the old one. He said: "Fundamentally, you're still going to have the same basic policy outcome for the country, but you're going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect."
Watson found "significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor" and ruled that the government's defense that the order contains no religious language wasn't going to help: "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."
No "Genuine Changes"
In the end, the government didn't have a good enough reason for the travel ban -- the court noted that allegations in the record "certainly call the [national security] motivations behind the Executive Order into greater question." And it didn't do enough to alter the ban to make it legal: "Based upon the current record available ... the Court cannot find the actions taken during the interval between revoked Executive Order No. 13,769 and the new Executive Order to be 'genuine changes in constitutionally significant conditions.'"
Thus Judge Watson issued a nationwide injunction against enforcing the new travel ban, at least until the Trump administration appeals the decision or rewrites the ban. Again.