HONOLULU (CN) – A Hawaii federal judge on Wednesday temporarily halted the implementation of President Donald Trump’s revised travel ban, hours before the executive order was scheduled to take effect.
Despite a hearing on the temporary restraining order earlier Wednesday morning, U.S. District Judge Derek Watson managed to crank out a 43-page ruling determining the Aloha State has standing to challenge the revised travel ban given the impacts it will have on the University of Hawaii and the staff and students it has recruited from targeted nations.
Trump’s revised executive order – which was signed March 6 and slated to take effect at 12:01 a.m. ET Thursday – bars citizens of six Muslim-majority countries from entering the United States, dropping Iraq from the previous order. Though the order reinstates a temporary blanket ban on all refugees, it removes language from the original order that indefinitely banned Syrian refugees.
The latest ban also dropped language that prioritized the admission of refugees who are religious minorities in their home nations.
On Wednesday morning, Watson heard oral arguments against the ban from attorneys representing Hawaii and counterarguments from acting U.S. Solicitor General Jeffrey Wall for the Justice Department.
Hawaii Attorney General Douglas Chin and Dr. Ismail Elshikh, a U.S. citizen of Egyptian origin whose Syrian mother-in-law is currently waiting for her visa to be reviewed, argued the order is unconstitutional because it violates both the Establishment Clause of the First Amendment and the Due Process Clause.
For the government, Wall argued Hawaii lacks standing in the case because its complaint cites only speculative harm.
"The state is making a procedural due-process challenge, but their claim is actually substantive,” Wall said. “They don't like [the president's] foreign relations policy."
Watson, however, made clear during the hearing that he is bound by a previous Ninth Circuit ruling that granted Washington state standing – a ruling that put a hold on Trump’s first travel ban.
Speaking by telephone, Wall argued the revised order is secular in language and intent. The new order, rewritten in consultation with the Attorney General, Secretary of State and Homeland Security Chief in response to the Ninth Circuit ruling, omits religious references.
Judge Watson shot back, "How do we assess if this neutrality is a subterfuge? Do we close our eyes to the background,” referring apparently to Trump's campaign promise to effect a “complete ban on all Muslims.”
Wall argued those words were a campaign statement, behind which no court has ever looked. But Watson noted that the Washington state case has spent a fair amount of time looking at Trump’s campaign rhetoric.
Despite this, Wall contended throughout that the Hawaii suit – unlike the Washington state case – involves generalized allegations that don’t show real injury to the state.
But Hawaii’s attorney Neal Katyal, also speaking by telephone, said the state and Elshikh have shown harm. The University of Hawaii, for example, is currently reviewing school applications, 40 of which are from Iranian citizens.
"The only question is the one asked by Dr. Elshikh's child: 'Dad, why can't we have Grandma like everyone else? Is it because we're Muslims?'" Katyal said.
In his ruling to temporarily block the revised travel ban, Watson said the financial injury to Hawaii is real, as are the effects on students and faculty from targeted nations.
He also noted the revised ban may not be as religiously neutral as the government claims.
“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 wrote of Trump’s campaign rhetoric. “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.”
Watson refused to stay his ruling for an emergency appeal – which would go again to the Ninth Circuit – and said he intends to set an expedited hearing to determine whether to extend the temporary block of the travel ban.
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