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By Kevin Daley
A federal judge in Hawaii has temporarily stayed certain provisions on President Donald Trump’s revised executive order on refugees and migrants.
U.S. District Judge Derrick Watson of the District of Hawaii issued an order late Wednesday that temporarily bars enforcement two aspects of the directive, which was scheduled to take effect at 12:01 am Thursday morning.
The challenge was brought by Hawaii Attorney General Doug Chin. The state has enlisted former acting Solicitor General Neal Katyal of Hogan Lovells for support in the challenge.
Hawaii sought to block two provisions of the order — one which suspends the refugee resettlement program and another that blocks travel from six countries with high instances of terror. Both provisions are now suspended pending further proceedings. The order applies nation-wide.
The ruling does not extensively engage with immigration law or with the scope of executive power. Instead, the ruling’s analysis is concerned almost exclusively with the religious discrimination argument, finding the order could violate the establishment clause, the provision of the First Amendment which prohibits the government from establishing a church, or favoring one religion over the other.
The court flat-out rejected the government’s argument that the order is religiously neutral in application. Instead, Watson concluded that the court should consider factors outside the record to determine if the order was issued with discriminatory intent. Generally speaking, federal courts will submit statutes or orders which may have a discriminatory purpose or effect to a much stricter level of review in assessing their lawfulness.
Watson concluded that several factors do suggest an intent to discriminate against Muslims on the part of the Trump administration. He says that, while the majority of the world’s Muslims are not affected by the revised order, evaluating for an establishment clause violation has never been a strictly mathematical exercise. “It is a discriminatory purpose that matters, no matter how inefficient the execution,” he writes.
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. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise. 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.
Government lawyers argued that the court should not attempt to determine if the government’s purpose was discriminatory, as doing so would be inappropriate for a court with limited time, facts, and expertise. Watson disagreed, writing that statements made by President Trump and his surrogates during the generally election plainly evince an intent to discriminate against Muslims.
“The remarkable facts at issue here require no such impermissible inquiry,” he writes. “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.’”
He specifically cited interviews given by then candidate Trump, and former New York City Mayor Rudy Giuliani, who told “Fox and Friends” that the president had asked him to craft a legal pretext for banning Muslim entry to the country. He writes:
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. 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’s ruling is now the second constitutional concern the courts have raised about Trump’s executive actions in issuing orders temporarily barring their implementation. The 9th U.S. Circuit Court of Appeals raised due process concerns when it upheld an order enjoining its enforcement in early Feb. Watson’s establishment clause analysis now provides a second basis for challenging the order that the courts have endorsed — and essentially amounts to the first time a federal court has characterized Trump’s order as a Muslim ban in staying its implementation.
The order can be appealed to the 9th Circuit.
There are several other rulings on the order currently pending in federal courts around the country. One challenge was brought by a coalition of advocacy groups, including the ACLU, the National Immigration Law Center, the International Refugee Assistance Project, and HIAS, Inc., in the U.S. District Court for the District of Maryland. They have asked U.S. District Judge Theordore Chuang to block the order in its entirety. A ruling in the case could come as soon as Wednesday night.