A federal judge on Tuesday largely blocked the Trump administration from implementing the latest version of the president’s controversial travel ban, setting up yet another legal showdown on the extent of the executive branch’s powers when it comes to setting immigration policy.
The decision from Judge Derrick Watson in Hawaii is sure to be appealed, but for now, it means that the administration cannot restrict the entry of travelers from six of the eight countries that officials said were either unable or unwilling to provide information that the United States wanted to vet their citizens.
The latest ban was set to fully go into effect in the early morning hours of Wednesday, barring various types of travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Watson’s order stops it, at least temporarily, with respect to all the countries except North Korea and Venezuela.
In a 40-page decision granting the state of Hawaii’s request for a temporary restraining order and blocking Trump’s order nationwide, Watson wrote that the latest 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 also wrote that the executive order “plainly discriminates based on nationality” in a way that was opposed to federal law and “the founding principles of this Nation.”
The White House said in a statement that Watson’s “dangerously flawed” order “undercuts the President’s efforts to keep the American people safe and enforce minimum security standards for entry into the United States.”
“These restrictions are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our Nation,” the White House said. “We are therefore confident that the Judiciary will ultimately uphold the President’s lawful and necessary action and swiftly restore its vital protections for the safety of the American people.”
Justice Department spokesman Ian Prior said the department would appeal in an “expeditious manner.”
“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,” he said.
Opponents of the ban, though, hailed the judge’s ruling. Hawaii Attorney General Douglas Chin said, “Today is another victory for the rule of law. We stand ready to defend it.”
Omar Jadwat, who directs the ACLU’s Immigrants’ Rights Project and was involved in a separate challenge to the ban in federal court in Maryland, said, “We’re glad, but not surprised, that President Trump’s illegal and unconstitutional Muslim ban has been blocked once again.”
Trump had been blocked by courts from imposing his last two versions of the travel ban, but the ultimate question of whether he ever had the authority to do so remains somewhat murky.
The Supreme Court had been scheduled to hear arguments on his second travel ban, inked in March, which barred the entry of citizens from six Muslim majority countries and refugees from everywhere. But a key portion of that ban expired and Trump issued his latest ban before the hearing.
That prompted the justices to remove oral arguments from the calendar. They later dismissed one of the challenges to the March version of the ban.
Meanwhile, the State of Hawaii, the International Refugee Assistance Project and others who had sued over the March travel ban asked judges to block the new one in federal courts in Hawaii, Washington and Maryland. They argued that Trump had exceeded his legal authority to set immigration policy, and the latest measure – like the last two – fulfilled his unconstitutional campaign promise to implement a Muslim ban. As of Tuesday afternoon, the judges in Hawaii and Washington had yet to rule, though arguments in Washington are scheduled for Oct. 30.
“It exceeds the limits on the President’s exclusion authority that have been recognized for nearly a century, by supplanting Congress’s immigration policies with the President’s own unilateral and indefinite ban,” the challengers in Hawaii wrote of the new ban. “And it continues to effectuate the President’s unrepudiated promise to exclude Muslims from the United States.”
The state asked a judge to block the ban with respect to all the Muslim majority countries, though they did not challenge the measures imposed against Venezuela and North Korea.
Watson did not address whether the ban was constitutional; rather, he limited his analysis to whether Trump had exceeded the authority that Congress has given the president to impose restrictions on those wanting to enter the United States. Of particular concern, he said, were that officials seemed to treat someone’s nationality an indicator of the threat they pose – without providing evidence of a connection between the two.
“As discussed herein, because [the executive order’s] findings are inconsistent with and do not fit the restrictions that the order actually imposes, and because [the executive order] improperly uses nationality as a proxy for risk, Plaintiffs are likely to prevail on the merits of their statutory claims,” Watson wrote.
He added that the order did “not reveal why existing law is insufficient to address the President’s described concerns,” and it was internally flawed – for example, exempting Iraq from the banned list, even though that country had failed the U.S. government’s security assessment.
Legal analysts had said those challenging the latest travel ban would face an uphill battle. That was particularly because measure was only put into effect after an extensive process in which the United States negotiated with other countries for information, putting those on a banned list that could not or would not meet a baseline standard.
Such a process, legal analysts said, presumably would help the government defeat arguments that 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 Muslim-majority – Venezuela and North Korea – potentially helping the government argue against the measure was not meant to discriminate against Muslims.
Challengers to the ban, though, 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 actually travel to the United States from North Korea each year. They noted Trump himself promised a “larger, tougher, and more specific” ban – meaning the new version would have the same legal problems as the prior iterations.
The directive imposed more complete bans on some countries than others, and the Trump administration has indicated countries could make their way off the list if conditions changed.
For Syria and North Korea, the president’s proclamation blocked immigrants wanting to relocate to the United States and nonimmigrants wishing to visit in some capacity. For Iran, the proclamation blocked both immigrants and nonimmigrants, though it exempted students and those participating in a cultural exchange.
The proclamation blocked people from Chad, Libya and Yemen from coming to the United States as immigrants or on business or tourist visas, and it blocked people from Somalia from coming as immigrants. The proclamation named Venezuela, but it only blocked certain government officials.