A judge in Hawaii has announced he wants a nationwide freeze of President Donald Trump’s updated Executive Order limiting the annual inflow of refugees into the United States, after left-wing lawyers told him it might block the arrival of Muslims, including the mother-in-law of a Hawaii-based Muslim cleric.
“I think we’ve been going for quite a while,” said the U.S. District Judge, Derrick Watson, at the end of the two-hour hearing when he ruled in favor of the lawyers the state who argued that Trump’s order is a religious restriction against Muslims. The judge’s order reads:
“Upon evaluation of the parties’ submissions, and following a hearing on March 15, 2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief … the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.
The case will be reheard and appealed, and may eventually be heard by the Supreme Court. Two other judges are slated to announce on Wednesday their support or opposition to the Executive Order.
The hold is aimed at the March 6 Executive Order 13780 which carefully cited legal and constitutional, plus national security reasons, for its temporary stop to the inflow of refugees from six conflict-prone Muslim countries, pending the development of new screening procedure to exclude migrants who may subsequently attack Americans. Multiple polls show Trump’s reforms are popular.
The court order tries to block two sections, Section 2 and Section 6 of EO 13,780.
Section 2 says:
The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.
… I therefore direct that the entry into the United States of nationals of those six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.
Section 6 blocks the arrival of already approved refugees from all countries for 120 days, saying “The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section.”
The judge says his restriction applies to “all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.”
The legal team which has won the first stage of the case included Doug Chin, Hawaii’s attorney general, who argued that the EO reform was improper because Trump and his deputies have also said during their successful election campaign that they oppose the immigration of Muslims. Other lawyers were provided by the ACLU and the National Immigration Law Center.
The judge suggested Trump’s political campaign undermined the legal and constitutional authority of his Executive Order. “Are you saying we close our eyes to the sequence of statements before this?” the judge asked the government lawyers during the hearing, according to the New York Times.
In his order, the judge said his order was justified by campaign statements, this Trump statement from a CNN interview in March 2016: “But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States. . . [a]nd of people that are not Muslim.”
The national security for curbs on refugees was also dismissed by the judge, despite numerous cases in which Muslim refugees, immigrants, and visitors from Muslim countries have attacked or killed thousands of Americans since 2001. “Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular [national security] purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims,” the judge declared.
The judge also agreed with the lawyers that the immigrant citizen Muslim cleric has the right to sue the federal government for visas to allow his relatives to live in the United States.
According to the Washington Post, a lawyer for the immigrant cleric said “Dr. [Ismail ] Elshikh certainly has standing [to sue the government] in this case. He, along with all of the Muslim residents in Hawaii face higher hurdles to see family because of religious faith … It is not merely a harm to the Muslim residents of the state of Hawaii, but also is a harm to the United States as a whole and is against the First Amendment itself.”
In response, the federal lawyers said the plaintiffs have to show harm before any judge can act against Trump’s policies. “’They bear the burden of showing irreparable harm … and there is no harm at all,’ said Acting U.S. Solicitor General Jeffrey Wall, who argued on behalf of the government in Greenbelt, Md. in the morning and by phone in Hawaii in the afternoon,” said the Post.
Administration lawyers said the constitution, the law and the Supreme Court on their side. For example, the law, at 8 U.S.C. § 1182 (f) says:
(f) Suspension of Entry or Imposition of Restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The Supreme Court has accepted and validated this “plenary power” of the elected president. For example, the court declared in its 1950 judgment, titled Knauff v. Shaughnessy, that:
It is not within the province of any court, unless expressly authorized by [congressional] law, to review the determination of the political branch of Government to exclude a given alien.
The judge’s opinion is one of several against Trump’s EO, and will face multiple levels of judicial hearings before the issue is decided by the Supreme Court.