David beat Goliath in federal court Wednesday — at least for now.
U.S. District Judge Derrick Watson granted Hawaii’s request to block President Donald Trump’s revised travel ban a day before it was schedule to go into effect.
Following a hearing in Honolulu, Watson issued a nationwide temporary restraining order, ruling that Trump’s travel ban violates the First Amendment religious establishment clause — especially considering the words he used about Muslims during his campaign for president.
At a rally in Nashville, Tenn., on Wednesday, Trump called the ruling “terrible” and vowed to appeal it to the U.S. Supreme Court.
Meanwhile, Gov. David Ige and state Attorney General Doug Chin were delighted during a news conference at the Royal Hawaiian hotel in Waikiki.
“We will not tolerate discrimination on the basis of national origin or religion, because that truly goes against the very essence of what makes Hawaii a very special place,” Ige said.
Chin said the ruling was a victory for the children and the next generation, for whom these rights are being preserved.
Ige, asked whether he was afraid of any blowback from the Trump administration, said he was not. “I am not afraid of any retaliation,” he declared.
While other states filed suit against the revised executive order, Hawaii was the first to go to court and achieve a ruling.
The revised order replaced the original Jan. 27 edict that barred the residents of seven Muslim-majority countries from entering the United States. That order was blocked by a federal appeals court.
‘Intangible harms’
The new order, issued March 6, prohibits individuals from six countries if they lack valid U.S. visas. Other tweaks also were made by the administration in an effort to make it pass legal muster, including the removal of language offering preferential status to persecuted religious minorities.
In his 43-page ruling, Watson said that while the new order is more narrowly focused, he couldn’t ignore Trump’s words on the campaign trail, including a March 2016 interview in which he said, “I think Islam hates us,” and an October interview in which he said that his proposed Muslim ban had morphed into extreme vetting.
Watson also said the state was able to demonstrate that its universities will suffer “monetary damages and intangible harms” due to the executive order, and that the state’s economy is likely to suffer from a decline in tourism.
As for co-plaintiff Ismail Elshikh, imam of the Muslim Association of Hawai‘i, he was able to show “direct, concrete injuries” to the exercise of his Establishment Clause rights and that he would suffer “irreparable injury” in the absence of a temporary restraining order, the judge said.
Elshikh’s attorneys argued that his mother-in-law, who is from Syria, faces uncertainty about whether she can travel here.
Watson said he intends to set an expedited hearing to determine whether the temporary restraining order should be extended.
Wednesday’s 1-1/2-hour hearing took place in Honolulu but featured arguments by attorneys speaking by telephone from the nation’s capital.
Arguing for the state were hired guns Neal Katyal and Colleen Roh Sinzdak of Washington, while Acting Solicitor General Jeffrey Wall represented the U.S. government.
In the filled courtroom were Chin and five of his top lieutenants representing Hawaii. On the other side of the table was Acting U.S. Attorney Elliot Enoki. They did not speak during the hearing.
Over a speakerphone, the state’s attorneys argued that the revised order is just as discriminatory against Muslims as the first one, and that it violates both the U.S. Constitution and federal laws.
While the state argued that tourism would be hurt by the ban and that its universities would be hamstrung in their recruiting of students and employees, Wall said that until that happens, it is mere speculation.
The new order, Wall said, offers a religion-neutral text that does not discriminate, and also includes a waiver process to help reduce any undue hardship.
Wall said the president has constitutional authority over foreign affairs and national security, and what Hawaii is arguing is “dangerously” wrong and would undermine the executive’s authority to safeguard the nation.
But state attorneys said the nation’s safety is merely an excuse for imposing the discriminatory action. The order, they said, flies in the face of both Hawaii’s and the nation’s values.
In the end, Katyal, the former acting solicitor general of the United States, told the judge that the most important question asked about the issue is found in the state’s court brief, where it quotes Elshikh’s oldest child: “Dad, how come we can’t have our grandmother like our friends; is it because we are Muslims?”
‘An intent is an intent’
After the hearing, Ellen Rosenblum, attorney general of Oregon, said the Hawaii ruling was a victory for Hawaii and the United States.
“I think what we heard today loud and clear — and it didn’t take the judge very long to rule — is that when there is an attempt to discriminate, whether it’s (within) the four corners of the document or whether you need to look outside to the context in which the document was prepared, an intent is an intent. You cannot snap your fingers and make intent to discriminate go away simply by substituting one document for another,” she said.
Hawaii’s congressional delegation also chimed in Wednesday, condemning Trump’s revised order and heaping praise on Watson and the state.
U.S. Sen. Brian Schatz released a statement that said in part: “It’s time for President Trump to stop violating the Constitution, and to rescind this latest effort to promote religious bigotry.”
U.S. Sen. Mazie Hirono called Watson’s ruling yet another blow to Trump’s travel ban. “President Trump during the campaign made clear his intention to impose a Muslim ban. He has done so and no amount of spinning can obfuscate his intent,” she said.
U.S. Rep. Colleen Hanabusa said she was pleased, saying this second attempt to ban a specific group from our country based on religious affiliation was no better than Trump’s first attempt.
“I join my Democratic colleagues in Congress in calling on President Trump to stop these unconstitutional and un-American attempts to discriminate against Muslims.”
U.S. Rep. Tulsi Gabbard added, “This travel ban is bad policy, plain and simple.”