President Trump's immigration policy officially has two strikes, as a federal judge in Hawaii issued a temporary restraining order against the president's revised travel ban on Wednesday. The restraining order prohibits enforcement of the controversial executive order until further notice, but several quotes from Judge Watson's travel ban ruling suggest that it may not be easy for the Trump administration to implement its policy any time soon. Among other things, the court called the government's argument "fundamentally flawed."
Hawaii's lawsuit argued that the president's ban, although revised from its previous version, infringed on the free exercise of religion. The state's attorneys also claimed that the travel ban would injure Hawaii's economy and sovereignty. To build its case, Hawaii put forth Dr. Ismail Elshikh, an American citizen of Egyptian descent and a longtime resident of Hawaii. Elshikh, who is Muslim, argued that his mother-in-law would be unable to attain a visa to visit her family in the United States because of the ban, and that the ban created a confusing, harmful environment for his Muslim children.
Hawaii wasn't the only state to sue the federal government over Trump's revised travel ban. Similar cases were also heard Wednesday in Maryland and Washington state. But Hawaii's lawsuit came first, as did its ruling, and the words of that ruling could have far-reaching impacts on the president's agenda.
"Irreparable Injury Is Likely"
Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued.
In other words, the state of Hawaii has a case, one that could be successful in further court proceedings. Oh, and Trump's travel ban could cause "irreparable injury" to the state and people like Elshikh.
"A Disfavored Religion"
According to Plaintiffs, the Executive order also results in "their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion."
Hawaii's case hinged largely on the idea that Trump's travel ban singled out individuals of the Muslim faith. The court noted that the language of the executive order did not favor or disfavor any religion, but that the context surrounding the order did. Clearly, there's no place for "a disfavored religion" in the United States.
Plaintiffs assert that by singling out nationals from the six predominantly Muslim countries, the Executive Order causes harm by stigmatizing not only immigrants and refugees, but also Muslim citizens of the United States.
Elshikh argued that his children felt confused after Trump's travel ban was issued. He also claimed that the ban harmed members of his mosque. If members of a certain faith don't feel comfortable in American communities, something has gone awry.
The February 24, 2017 draft report states that citizenship is an "unlikely indicator" of terrorism threats against the United States.
Hawaii called on a draft report from the Department of Homeland Security, which called citizenship an "unlikely indicator" of terrorist activity. In other words, Trump's travel ban, which supposedly seeks to protect Americans by banning immigration from certain countries, may not even be effective.
"Main Economic Driver"
The second proprietary injury alleged Hawaii alleges is to the State’s main economic driver: tourism.
As it turns out, Hawaii may have been in a particularly fitting position to challenge Trump's travel ban. It's no secret that Hawaii relies heavily on tourism for its economy. By limiting the population that can travel to its tropical paradise, Trump's travel ban could seemingly harm the Hawaiian economy.
"Put On Hold"
On January 31, 2017, Dr. Elshikh called the National Visa Center and learned that his mother-in-law’s visa application had been put on hold and would not proceed to the next stage of the process because of the implementation of Executive Order No. 13,769.
For his part, Elshikh testified that his mother-in-law's visa application had been delayed twice because of Trump's travel bans. He called the effects of Trump's executive orders "devastating" to him and his family.
"Reasonable, Objective Observer"
[A] reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.
Despite the government's arguments otherwise, the court ultimately found that it was "reasonable" to believe that the travel ban was meant to target Muslims. The court, then, couldn't stand for the designation of a disfavored religion.
"Does Not Facially Discriminate"
It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.
Here, the court concedes that the travel ban does not explicitly target any religion in particular. That was part of the government's argument — but it wasn't enough for the court.
"No Paradigmatic Leap"
It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam.
The court's ruling noted that the six countries explicitly identified in Trump's travel ban "have overwhelmingly Muslim populations ranging from 90.7 percent to 99.8 percent." It doesn't take a stretch of the imagination — or a "paradigmatic leap" — to see that Muslims are clearly targeted. Using the phrase "paradigmatic leap" in everyday conversation is now officially #goals.
The illogic of the Government’s contentions is palpable.
Judge Watson didn't buy the government's argument that the travel ban did not discriminate against Muslims. "The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed," the ruling continued.
"Significant And Unrebutted Evidence"
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.
This is where things get really awkward — at least for the Trump administration. The court found "significant and unrebutted evidence" that Trump's travel ban was inspired by allegedly discriminatory motives. It didn't find those motives in the executive order itself, but rather in the statements Trump had made before the order was even signed.
"Need Not Fear"
The Government appropriately cautions that, in determining purpose, courts should not look into the "veiled psyche" and "secret motives" of government decision makers and may not undertake a "judicial psychoanalysis of a drafter’s heart of hearts." Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The Government need not fear.
It's as if the court is saying, "We hear Trump loud and clear." To the administration's dismay, the court just isn't liking what it is hearing. Major shade.
"Plainly Worded Statements"
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.
So, what is the court hearing, exactly? Judge Watson took Trump's previous statements, including the press release from his campaign that called for a "total and complete shutdown of Muslims entering the United States," into consideration. With those statements in mind, Judge Watson ruled that Trump's travel ban was religiously motivated.
National security is unquestionably important to the public at large.
Despite the ruling, the court did not dismiss the Trump administration's concern for national security. It did, however, find that the public's interest for travel, family togetherness, and freedom from discrimination outweighed the Trump administration's preferred method of protecting Americans.
"Pending Further Orders"
Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.
Translation: Travel ban invalidated until further notice.
Although the court's ruling noted that "context may change," it seems unlikely that Trump's travel ban will be implemented right away. If the potential damage to Hawaii's economy and Muslim families weren't enough, it seems that Trump's own words may have sealed the deal. The president may head back to the drawing board, but he can't change what he said on the campaign trail, even if he wanted to.