On Wednesday, a federal judge in Hawaii issued an order blocking the implementation of President Trump’s revised Muslim ban. While the ban removed Iraq from the list and scaled back other provisions, many believed it preserved the major components of the original executive order.
These provisions included halting new visas and green cards for people from six Muslim-majority countries — Iran, Libya, Somalia, Sudan, Syria and Yemen – and stopping all refugees from entering the United States for 120 days, while limiting total refugee admissions. The ban was set to go into effect just after midnight on Wednesday.
U.S. District Judge Derrick Watson’s court order stated, “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.”
He added, “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% to 99.8%. 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.”
Last week many argued that the new ban was unconstitutional based on statements made outside of the text of the executive order. They pointed to the intent of the law as described during the campaign and the early stages of the administration.
The government shot back, arguing that the court should rely only on the text of the executive order to evaluate its purpose.
Judge Watson rejected this argument, ruling, “Only a few weeks ago, the Ninth Circuit commanded otherwise. … The Supreme Court has been even more emphatic: courts may not ‘turn a blind eye to the context in which [a] policy arose.’”
He added, “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 wrote, “The 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.’”
The judge noted that President Trump’s own words, and those of his aides and advisers, betrayed the true intent of the executive order, as he wrote, “Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, 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.”
He did leave open the possibility that the administration could issue a revised order that would pass constitutional muster: “Here, 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. … context may change during the course of litigation, and the Court is prepared to respond accordingly.”
Judge Watson concluded, “Plaintiffs have shown a strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution. When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO.”
The president responded, calling the judge’s ruling an example of “unprecedented judicial overreach” and said his administration would appeal it to the U.S. Supreme Court.
“This ruling makes us look weak … We’re going to win. We’re going to keep our citizens safe,” the president said. “The danger is clear. The law is clear. The need for my executive order is clear.”
AG Jeff Sessions released a statement on Wednesday stating that he “strongly disagrees with the federal district court’s ruling, which is flawed both in reasoning and in scope.”
“The President’s Executive Order falls squarely within his lawful authority in seeking to protect our Nation’s security, and the Department will continue to defend this Executive Order in the courts,” said Sarah Isgur Flores, DOJ spokesperson.
However, rights groups applauded the ruling.
“We welcome this order as confirmation of the strength of our nation’s system of checks and balances that prevents one branch of government from violating the Constitution or the rights of any vulnerable group,” said CAIR (Council on American-Islamic Relations) National Executive Director Nihad Awad.
He added, “We urge the Trump administration to scrap this Muslim ban entirely because it disrespects both the Constitution and America’s longstanding tradition of religious freedom and inclusion.”
Meanwhile, the ACLU, which has been at the center of the fight, applauded the decision.
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said, “The Constitution has once again put the brakes on President Trump’s disgraceful and discriminatory ban. We are pleased but not surprised by this latest development and will continue working to ensure the Muslim ban never takes effect.”
Click here to read the whole ruling.
—David M. Greenwald reporting