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WASHINGTON — Two U.S. federal courts have issued temporary restraining orders against President Donald Trump’s second try at using an executive order to limit who is allowed to enter the country.
A judge in Hawaii blocked both the order’s suspension of refugee admissions and its ban on issuing new visas to people from a group of six countries. A federal judge in Maryland also cited Trump’s comments in issuing a separate injunction Thursday, but that ruling applies only to the visa ban portion of the executive order, and not the section on the refugee program.
Judge Derrick Watson found Wednesday that the legal challenge brought by the state of Hawaii was likely to succeed on the merits of an argument that the executive order violates the Constitution’s Establishment Clause, which requires government actions to have a primarily secular purpose.
He pointed to statements made by Trump and his associates both before and after the president was elected in November. Trump’s campaign once included a call to ban all Muslims from entering the United States, a policy that was later changed to advocating “extreme vetting” for people from countries with a link to terrorism.
Judge Watson said the case before him included “significant and unrebutted evidence of religious animus driving the promulgation of the executive order and its related predecessor.”
The Trump administration says the ban is necessary to protect the country from the threat of terrorism.It features a four-month ban on admitting any refugees and a three-month freeze on issuing visas to people from Iran, Syria, Yemen, Libya, Somalia and Sudan.It was due to go into effect Thursday before its enforcement was frozen.
An earlier version of the order included Iraq in the targeted countries, as well as a clause that exempted religious minorities from the ban.
All of the countries involved are overwhelmingly majority-Muslim.Judge Watson rejected the government’s argument that because the listed countries do not include all the world’s Muslim population, the order is not a ban on 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 court declines to relegate its Establishment Clause analysis to a purely mathematical exercise,” Watson wrote.
The Justice Department, which represents the government in the case, said it does not agree with Wednesday’s ruling, calling it “flawed both in reasoning and in scope.”
“The president’s executive order falls squarely within his lawful authority in seeking to protect our nation’s security, and the department will continue to defend this executive order in the courts,” said a DOJ statement.
Trump said the court’s ruling makes the United States look weak, and that he will continue the legal battle.
“The danger is clear, the law is clear, the need for my executive order is clear,” he told supporters at a rally in Tennessee.”I was elected to change our broken and dangerous system and thinking in government that has weakened and endangered our country and left our people defenseless.”
Leon Fresco, an immigration attorney who served as deputy assistant attorney general for the DOJ Civil Division’s Office of Immigration Litigation during President Barack Obama’s administration, said the key question in the case going forward is the president’s authority to suspend entry of people he finds would be detrimental to the country.
“I think it was an interesting ruling in the sense that the court is taking a very bold statement on saying that the actions in the administration have basically irrevocably tainted any effort to move forward with this travel executive order,” Fresco told VOA via Skype.
“I do think that the order is not going to be very persuasive as it moves its way up to the 9th Circuit or to the Supreme Court for the reason that it did not even engage in any analysis whatsoever regarding Section 212 (f), which is that actual statute that the president cited for giving him the authority to create the executive order in the first place.”
The 9th Circuit Court of Appeals last month upheld a similar lower court ruling to prevent the government from enforcing Trump’s original executive order.Hawaii is part of the same circuit, so if the Justice Department does appeal, the issue will again land there.
Fresco said he thinks the president’s statutory authority to ban people is “absolutely vital to the country,” and shouldn’t be weakened by what he called “an ill-conceived travel ban with ill-conceived statements.”
“If you think someone is dangerous, just deny their visa.You don’t need a ban,” he said.”And the fact that they created these waivers just shows you that they basically are implementing a normal visa system.They’re saying deny it unless there’s some reason to grant it.There’s no reason you couldn’t do that now, just don’t have a categorical ban.”
Civil rights groups, which opposed Trump’s original order as unconstitutional, side with the several states that are challenging the new order, in addition to Hawaii.
“No matter how far President Trump tries to run away from his initial statements that this was a ban on Muslims and discrimination against Muslims, he can’t erase where this order originated – in an effort to discriminate against Muslims on the basis of their religion,” said Cecillia Wang, deputy legal director of the American Civil Liberties Union, on a call with reporters Tuesday.