Oliver Laughland, Ed Pilkington, David Smith, and Liz Barney, The Guardian, March 16, 2017
Donald Trump appears set on a collision course with federal judges, vowing to fight them to the end after a district court in Hawaii issued the second block in as many months on his proposed travel ban on visitors from Muslim-majority countries.
The dramatic clashes between Trump and the judiciary came just hours before the president’s revised executive order was due to come into effect at midnight. Had it stood, the travel ban would have put a complete stop to arrivals of refugees from anywhere in the world as well as newcomers from six predominantly Muslim countries.
But in a ruling that mirrored the restraining order issued by a Washington state judge just a month ago, Judge Derrick Watson of the federal district court in Honolulu delivered another stinging blow to the Trump administration’s contentious ambitions. Watson imposed a nationwide temporary stay on the travel ban that he found to be in violation of the establishment clause of the US constitution that prohibits discrimination against any religion.
As a result of the Hawaii action, the midnight deadline for the implementation of the travel ban came and went without any visible impact at US airports.
Early on Thursday, a district judge in a similar case in Maryland also issued a nationwide preliminary injunction against the ban. The ruling is not as sweeping as the Hawaii order, and only applies to visa applicants from the six Muslim-majority countries.
Though the ports remained calm, the foundations have been laid for what promises to be an epic legal struggle.
Firing the first salvos in that battle, a livid Trump accused the Hawaii judge of committing “unprecedented judicial overreach”. At a campaign-style rally in Nashville, Tennessee, on Wednesday night, just a couple of hours after the ruling came down, he told supporters that he remained defiant.
“We’re going to fight this terrible rule, we’re going to take this case as far as it will go, including the supreme court. We’re going to win,” he said.
In an echo of his attack on the judge who struck down the first travel ban, Trump sarcastically suggested that Watson might have acted for political reasons and also floated the idea of breaking up the California-based ninth circuit court of appeals – a provocative remark given that the same circuit is likely to adjudicate any appeal to the Hawaii ruling.
As he spoke, the president potentially dug himself deeper into a legal hole. Trump told the Nashville crowd that the revised travel ban was merely “a watered-down version of the order that was blocked by another judge and should never have been blocked to start with”. He even suggested that he might “go back to the first one and go all the way”, indicating that he was minded to revert to the original executive order in a way that could further intensify the conflict with the courts.
The Nashville remarks could play into the hands of the teams of human rights lawyers who are lining up to oppose the travel ban. As such, the comments could be turned against him to provide further evidence that the president remains attached to the idea of a “Muslim ban” – a promise that he made repeatedly during the 2016 presidential campaign and which a succession of federal courts have now found to be in breach of the US constitution.
Watson leaned heavily on the subject of intent in issuing his ruling. He referenced inflammatory statements made by Trump throughout the presidential race that singled out Muslims and the Islamic faith as a broad national security threat.
The judge also referred to comments by close associates of the president’s after he had entered the White House. A day after the first executive order was issued, Watson noted, the former New York mayor Rudy Giuliani told a television show that “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
The judge described these remarks as “significant and unrebutted evidence of religious animus” driving both the first and second order.
Senior administration officials are now gearing up to appeal the Hawaii decision, the start of a process that could end at the door of the US supreme court. The Department of Justice said late on Wednesday that it “strongly disagrees” with the ruling, calling it “flawed both in reasoning and in scope”, and said that it would “continue to defend this executive order in the courts.”
Opponents of the ban are also preparing themselves for what promises to be a bitter fight. Doug Chin, the attorney general of Hawaii who brought the legal challenge on behalf of the state, said the court decision showed that “whenever you have hostility towards a particular religion or nation of origin that’s certainly going to be something that is improper and a violation of the constitution”. He added that the confrontation between Trump and the courts showed “the strength of the American system of checks and balances”.
The American Civil Liberties Union (ACLU) that has been involved in much of the litigation against the ban said it was prepared for a long court battle should it go that way. The ACLU’s Lee Gelernt commended the Hawaii judge for recognizing that “the revised order, like the first, continues to discriminate on the basis of religion and would have a real impact on thousands of people fleeing bad situations in their home countries”.
Nihad Awad, the executive director of the Council on American-Islamic Relations responded to news of the Hawaii opinion with relief. “Time and time again we are proving that America is a nation of laws and that we have an independent judiciary to tell Donald Trump that he cannot play with the US constitution. We are reassured by these rulings that discrimination will not be tolerated no matter where it comes from, not even the president of the United States.”
The ruling was also greeted with delight by groups working with tens of thousands of refugees around the world who would have been caught by the travel ban had it been allowed to go ahead. Hans van de Weerd of the International Rescue Committee, which has one of the largest resettlement programs in the US, hailed the decision as a “victory for refugees, immigrants and visitors who would be directly affected by this travel ban, many of whom would have been heartlessly separated from family members.”
Amnesty International commended Judge Watson for focusing his ruling on Trump’s past comments on blocking Muslims from entering the country. “The public has not been fooled by this executive order and neither have the courts,” said Naureen Shah, the national security and human rights director of Amnesty’s US branch.
“You cannot describe bigotry in some other way and expect people to believe you are no longer discriminating when you have been so blatant about it all along.”