Arguing that President Trump’s new effort to curb immigration of people from Mideast nations is actually a continued attempt to ban Muslims based on their religion, the state of Hawaii has opened a new round of court challenges to the federal government’s power to restrict travel as a way to head off what it considers threats of terrorism.
In papers filed Tuesday night in federal trial court in Honolulu, the state’s lawyers argued that the second Trump executive order “is infected with the same legal problems as the first order – undermining bedrock constitutional and statutory guarantees.” A federal judge on Wednesday reacted quickly, ordering a fast-paced schedule that could allow a ruling before the second order is due to take effect at one minute after midnight on March 16. Trump Administration lawyers joined Hawaii in proposing that schedule.
The state is seeking the same kind of nationwide ban on enforcement of the new order as a federal judge in Seattle issued last month in reaction to the first Trump order – an enforcement ban that then won the approval of a federal appeals court, the U.S. Court of Appeals for the Ninth Circuit.
The Trump Justice Department will defend the new order before U.S. District Judge Derrick K. Watson in Honolulu and, if he rules in favor of Hawaii’s challenge, the administration is expected to pursue a new appeal to the Ninth Circuit Court and, perhaps, to the Supreme Court.
Technically, the Hawaii lawsuit needed – and quickly obtained — Judge Watson’s consent before it could move forward, because he had previously handled a lawsuit by that state challenging the first Trump order and he had put that case on hold when the Ninth Circuit Court got involved in reviewing the Seattle judge’s enforcement ban, imposed in a separate case pursued by the states of Washington and Minnesota. Those two states seem likely to pursue their own new case against the president’s revived effort, and other challenges seem certain, such as a planned lawsuit by the American Civil Liberties Union.
After the courts’ initial enforcement ban, several federal agencies along with White House aides fashioned a new presidential order, with the aim of curing the legal flaws that the courts had found in the original version. The effort was postponed several times, and a new order was issued on Monday.
One key choice that officials made for the new order was to drop any references to religion as that applied to foreign nationals who would be eligible to enter the U.S. during a new 90-day span aimed at nationals of six Mideast nations. (The first order had applied to seven Mideast nations with Muslim majorities, but the second order dropped one of those – Iraq.)
The elimination of language about religion, the state of Hawaii is claiming in its new challenge, did not make the restrictions any less a “ban on Muslims” than had been the case with the first order. The second order, it argued, “began life as a ‘Muslim ban.’ ” It based that claim on a series of statements by Donald Trump as a presidential candidate and as president, and on statements by his close associates, indicating that the target of the efforts was to be Muslims.
Thus, the first legal claim in the state’s new lawsuit is that the order violates the Constitution’s First Amendment religion clauses, because it and the statements of the president and others show that the order “has the effect of disfavoring Islam.”
The state seeks to bolster its claim about a religious content and to support its arguments about a human impact by adding to the case, as an individual challenger, an Egyptian-born U.S. citizen, Ismail Elshikh, who is the imam of a mosque that serves a group of Hawaii’s Muslims. The imam and his citizen wife and five children are unable to arrange a visit for his wife’s mother, who is Syrian now living in Syria, because she does not have a current visa and thus is banned by the new presidential order, according to the legal complaint.
Hawaii’s lawsuit also makes these claims about the second presidential order: it violates constitutional guarantees of legal equality due to discrimination based on nationality as well as on religion, violates constitutional guarantees of a right to travel internationally, violates constitutional guarantees of fair procedures in determining who may travel in and out of this country, violates federal immigration laws, violates a federal law protecting religious freedom from government interference, exceeds the government’s powers under immigration laws, and was published illegally because the public had no chance to react to it before it was issued.
The lawsuit asks specifically that the judge strike down the 90-day suspension of travel to the U.S. by nationals of six Mideast nations, as well as the order’s 120-day suspension of travel to the U.S. by refugees from any country. And it asks the judge to forbid enforcement “across the nation.”
While Hawaii’s lawsuit proceeds in Judge Watson’s court, it will file later on Wednesday a formal request for the judge to issue a temporary restraining order so that the president’s new order does not take effect in the meantime. That is the kind of court order that the Seattle judge had issued last month to stop enforcement of the first version of the presidential order.
Under the initial schedule the judge approved on Wednesday, the Trump Administration will file its answer to the Hawaii claims on March 13, the state will file a reply on March 14, and Judge Watson will hold a hearing — with some lawyers taking part by telephone — on March 15.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.
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