A federal judge in Hawaii on Tuesday granted a temporary restraining order against President Donald Trump’s third Muslim travel ban, just hours before it was set to take effect on Wednesday October 18. Trump issued a proclamation on September 24 restricting travel to the US from nationals of eight countries: Chad, Iran, Libya, Syria, Somalia, Yemen, North Korea and Venezuela.
New restrictions came after the first two iterations of the travel ban, which targeted Muslim nations, faced court challenges.
US District Court Judge Derrick Watson wrote in a 40-page opinion on Tuesday that Trump’s third travel ban would cause “irreparable harm” and violate federal immigration law were it to take effect.
“[The travel ban] suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States,'” Watson wrote, adding that the ban “plainly discriminates based on nationality.”
White House press secretary Sarah Sanders called the ruling “dangerously flawed.
“The entry restrictions in the proclamation apply to countries based on their inability or unwillingness to share critical information necessary to safely vet applications, as well as a threat assessment related to terrorism, instability, and other grave national security concerns,” Sanders said in a statement.
The Justice Department will “appeal in an expeditious manner,” spokesman Ian Prior said. “Today’s ruling is incorrect, fails to properly respect the separation of powers, and has the potential to cause serious negative consequences for our national security.”
Trump’s first ban, issued Jan. 27, sought to bar those who would enter the U.S. from seven majority Muslim countries, then including Iraq and Sudan, during a 90-day review of U.S. vetting procedures. Announced without prior warning, it caused chaos at U.S. airports and a torrent of lawsuits objecting to the sudden exclusion of people who had a right to be in the U.S.
After an appeals court blocked Trump from enforcing the ban, the president issued a revised order that dropped Iraq and provided additional reasons for halting entry from the remaining countries. That sparked additional suits, court orders and appellate reviews.
Trump’s second travel ban, issued in March, was blocked by lower courts but partly implemented by the Supreme Court.
There have been at least six legal challenges to Trump’s latest travel ban, according to Bloomberg. Hawaii Attorney General Douglas Chin revived a lawsuit opposing the initial one, while immigrant rights’ groups including the International Refugee Assistance Project and HIAS — an organization founded in the 19th century to aid Eastern European Jews — sought to block the second. The states of Washington, California, New York, Massachusetts, Maryland and Oregon last week restarted their litigation, and individuals have sued as well.
CNN said the administration has had almost a year to finesse the travel ban so that it would hold muster in the lower courts, and the latest ruling illustrates that the legal challenges are far from over. Whether the Supreme Court takes up the issue this term is an open question. The justices were poised to hear a blockbuster consolidated case concerning travel ban 2.0, but they dismissed one case and are likely to dismiss a second. The justices signaled that they want the lower courts to rule first on the new restrictions.
Washington Post quoted legal analysts as saying that challengers of the latest travel ban would face an uphill battle, particularly because the measure was put into effect after an extensive process in which the United States negotiated with other countries for information.
Such a process, legal analysts said, presumably would help the government defeat arguments that the president had not made the appropriate findings to justify his order. The list of countries affected also was changed to include two countries that are not majority Muslim — Venezuela and North Korea — potentially helping the government argue that the measure was not meant to discriminate against Muslims.
Challengers to the ban, however, sought to link the new directive to its predecessors, and they asserted that even the additions were mainly symbolic. The ban only affects certain government officials from Venezuela, and very few people travel to the United States from North Korea each year. They noted that Trump himself promised a “larger, tougher, and more specific” ban — meaning that the new version would have the same legal problems as the earlier iterations.
Hawaii Attorney General Doug Chin celebrated the order. The state has been fighting each version of the travel ban. “This is the third time Hawaii has gone to court to stop President Trump from issuing a travel ban that discriminates against people based on their nation of origin or religion,” Chin said in a statement. “Today is another victory for the rule of law. We stand ready to defend it.”
ACLU lawyer Omar Jadwat, who represents several parties in the Hawaii case, said the allegation that Trump’s ban is inspired by anti-Muslim bias will continue to feature in the case, even if it wasn’t the basis for Tuesday’s ruling. The ban is fundamentally flawed, the attorney said.
“As long as the government tries to enact the same core policy over and over again, it should not be surprised that it ends up with the same result over and over again, which is courts finding these bans to be illegal and unconstitutional,” Jadwat said in a phone call.