Federal courts in Hawaii and Maryland issued a nationwide temporary restraining order on President Trump's latest travel ban. Both courts held that the revised travel ban was likely in violation of the establishment clause as it unduly targets foreign nationals of the Islam faith.
The latest travel ban was set to take effect on Thursday, March 16, 2017, and would have banned foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for 90 days. The ban would also bar all refugees, regardless of nationality, from entering the U.S. for 120 days. President Trump issued the revised ban based on a Ninth Court ruling that held that the original ban was unconstitutional and that "the government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States." Notably, the revised executive order removed Iraq from the list of affected countries and no longer singled out refugees from Syria as indefinitely suspended. In addition, the revised executive order clarified that it would not apply to lawful U.S. permanent residents or to foreign nationals of the affected countries who already possess a valid visa to enter the U.S.
Nevertheless, the revised travel ban was still unable to overcome the issue of discriminatory intent. U.S. District Judge Derrick Watson of Hawaii noted in his opinion that "these six countries have overwhelming Muslim populations that range from 90.7% to 99.8%," and "it would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam."
Judge Watson's opinion is packed with anti-Muslim statements (and even a tweet) made by President Trump, and his administration, during and after his presidential campaign run. These statements, Judge Watson writes, clearly show that the executive order's true intention was to ban Muslims – even if the word "Muslim" is missing from the order itself. As evidence, Judge Watson cited President Trump's response to the San Bernardino, California terror attack from December 8, 2015, in which President Trump called for a "complete shutdown of Muslims entering the United States."
In his opinion, U.S. District Judge Theodore D. Chuang of Maryland stated that the government did not fulfill its duty of showing that national security could not be maintained without the six-country travel ban, and therefore could not uphold it.
The temporary restraining order expires within 14 days of issuance, unless extended by the court. The Justice Department, in a statement from March 16, 2017, announced that it will defend the new travel ban, citing that Judge Watson's ruling "is flawed both in reasoning and scope." The administration expects to appeal to the Fourth Circuit, as well as seek clarification from the Hawaii decision before appealing it in the Ninth Circuit.
Soon after Judge Watson issued his opinion, President Trump promised a crowd of supporters that he intends to defend his order all the way up to the U.S. Supreme Court. During this rally, President Trump referred to the newly blocked travel ban as a "watered down version of the first order" and went as far as to state that "I think we ought to go back to the first [travel ban] and go all the way."
Lewis Brisbois will continue to monitor developments involving the executive order and will provide updates as they become available.
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