Trump suffers second defeat as revised travel ban placed on hold

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Al Drago / The New York Times

Protesters demonstrate against President Donald Trump’s revised travel ban, outside the U.S. Customs and Border Protection headquarters in Washington, March 7, 2017. Trump’s new executive order sharply restricting travel from the Middle East is set to go into effect just after midnight Thursday, even as the measure faces an array of legal challenges from nonprofit groups and Democratic state attorneys general.

Thu, Mar 16, 2017 (2 a.m.)

A federal judge in Hawaii issued a nationwide order Wednesday evening blocking President Donald Trump’s ban on travel from parts of the Muslim world, dealing a stinging blow to the White House and signaling in pointed language that Trump will have to account in court for his heated rhetoric about Islam.

The ruling was the second major setback for Trump in his pursuit of a policy he has trumpeted as critical for national security. His first attempt to sharply limit travel from a handful of predominantly Muslim countries ended in a courtroom fiasco last month, when a federal court in Seattle halted it.

Trump reacted to that setback with fury, lashing out at the judiciary. He did so again at a rally in Nashville, Tennessee, on Wednesday night a couple of hours after the ruling.

Raising his voice to a hoarse shout, Trump criticized the judge, Derrick K. Watson, as well as the 9th U.S. Circuit Court of Appeals, which upheld the earlier court ruling and will hear any appeal of the Hawaii decision.

“You don’t think this was done by a judge for political reasons, do you?” he asked the crowd. “This ruling makes us look weak — which, by the way, we no longer are, believe me.”

After the first judicial defeat, Trump issued a new and narrower travel ban on March 6, trying to satisfy the courts by removing some of the most contentious elements of the original version.

With cheers mounting from his loyal crowd Wednesday night, Trump even said he might reissue the initial version of the order, rather than the one halted on Wednesday, which he described as “a watered-down version of the first one.”

After he signed the revised ban, Democratic attorneys general and nonprofit groups that work with immigrants and refugees raced back into court against Trump, alleging that his updated decree was still a thinly veiled version of the ban on Muslim migration that he had pledged to enact as a presidential candidate.

Watson, who was appointed by President Barack Obama, ruled that the state of Hawaii and an individual plaintiff, Ismail Elshikh, the imam of the Muslim Association of Hawaii, had reasonable grounds to challenge the order as religious discrimination. And he concluded that allowing the travel restrictions to go into effect at midnight, as scheduled, could have caused them irreparable harm.

Watson flatly rejected the government’s argument that a court would have to investigate Trump’s “veiled psyche” to deduce religious animus. He quoted extensively from the remarks by Trump that were cited in the lawsuit brought by Hawaii’s attorney general, Doug Chin.

“For instance, there is nothing ‘veiled’ about this press release,” Watson wrote, quoting a Trump campaign document titled “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”

Watson singled out Elshikh, an American citizen whose Syrian mother-in-law had been pursuing a visa to enter the United States, as having an especially strong claim that the travel regulations would harm him on the basis of his religion.

“This is a great day for democracy, religious and human rights,” Elshikh, who was out of the country, said in a message relayed through Hakim Ouansafi, the chairman of the Muslim Association of Hawaii. “I am very pleased that the processing of my mother-in-law’s paperwork will not stop now but more importantly that this Muslim ban will not separate families and loved ones just because they happen to be from the six countries.”

Elshikh, who is Egyptian and previously worked in Michigan, was recruited to the Hawaii mosque more than a decade ago, Ouansafi said. And when the association began recruiting someone to serve as a plaintiff, the imam, who became a citizen last year, agreed to do so without reservation, Ouansafi said.

After Elshikh became the face of the lawsuit, he received several threats from the mainland, Ouansafi said. “If we lived in any other state, I would not have asked him to come forward,” he said.

In addition to the Hawaii suit, federal judges in Washington state and Maryland heard arguments in several other cases challenging the constitutionality of Trump’s order, including one brought by a coalition of Democratic attorneys general, and others from a collection of nonprofit groups. Watson was the only one who ruled on Wednesday.

Administration lawyers have argued that the president was merely exercising his national security powers. In the scramble to defend the executive order, a single lawyer in the U.S. solicitor general’s office, Jeffrey Wall, argued first to a Maryland court and then, by phone, to Watson in Honolulu that no element of the order, as written, could be construed as a religious test for travelers.

Wall said the order was based on concerns raised by the Obama administration in its move toward stricter screening of travelers from the six countries affected.

“What the order does is a step beyond what the previous administration did, but it’s on the same basis,” Wall said in the Maryland hearing.

After Trump’s speech in Nashville, the Justice Department released a more muted statement disputing the Hawaii decision, calling it “flawed both in reasoning and scope.” Sarah Isgur Flores, a spokeswoman for the department, said it would continue to defend the legality of the presidential order.

Refugee organizations and civil rights groups greeted the ruling with expressions of triumph and relief. Marielena Hincapié, executive director of the National Immigration Law Center, hailed the ruling on a conference call as “a strong and unequivocal rejection of the politics of hate.”

At the same time, advocates for refugees and immigrants acknowledged that significant uncertainty would hang over some of their more practical decisions, as a longer legal process plays out around Trump’s order.

“It’s a preliminary decision, but it recognizes that there continue to be problems with the constitutionality of this revised order, particularly with discriminatory intent toward Muslims,” said Betsy Fisher, policy director at the International Refugee Assistance Project at the Urban Justice Center.

Trump’s original ban, released on Jan. 27, unleashed scenes of chaos at U.S. airports and spurred mass protests. Issued abruptly on a Friday afternoon, it temporarily barred travel from seven majority-Muslim nations, making no explicit distinction between citizens of those countries who already had green cards or visas and those who did not.

It also suggested that Christian refugees from those countries would be given preference in the future.

After a federal court in Seattle issued a broad injunction against the policy, Trump removed major provisions and reissued the order. The new version exempted key groups, like green card and visa holders, and dropped the section that would have given Christians special treatment.

Trump also removed Iraq from the list of countries covered by the ban after the Pentagon expressed worry that it would damage the United States’ relationship with the Iraqi government in the fight against the Islamic State.

Yet those concessions did not placate critics of the ban, who said it would still function as an unconstitutional religious test, albeit one affecting fewer people: an argument Watson concurred with in his ruling.

The lawsuits have also claimed that the order disrupts the operations of companies, charities, public universities and hospitals that have deep relationships overseas. In the Hawaii case, nearly five dozen technology companies, including Airbnb, Dropbox, Lyft and TripAdvisor, joined in a brief objecting to the travel ban.

The second, now-halted executive order preserved major components of the original. It would have ended, with few exceptions, the granting of new visas and green cards to people from six majority-Muslim countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — for at least 90 days. It would have also stopped all refugees from entering for 120 days and limited refugee admissions to 50,000 people in the current fiscal year.

Former President Barack Obama had set in motion plans to admit more than twice that number.

Trump has said the pause is needed to re-evaluate screening procedures for immigrants from the six countries. “Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones,” he wrote in the order.

Watson’s order was not a final ruling on the constitutionality of Trump’s ban, and the administration has expressed confidence that courts will ultimately affirm Trump’s power to issue the restrictions.

But the legal debate is likely to be a protracted and unusually personal fight for the administration, touching Trump and a number of his key aides directly and raising the prospect that their public comments and private communications will be scrutinized.

The lawsuits against the travel ban have extensively cited Trump’s comments during the presidential campaign.

Attorney General Bob Ferguson of Washington, who successfully challenged Trump’s first order, has indicated that in an extended legal fight, his office could seek depositions from administration officials and request documents that would expose the full process by which Trump aides crafted the ban.

As a candidate, Trump first proposed to bar all Muslims from entering the United States, and then offered an alternative plan to ban travel from a number of Muslim countries, which he described as a politically acceptable way of achieving the same goal.

The lawsuits also cited Rudy Giuliani, the former New York City mayor who advises Trump. Giuliani said he had been asked to help craft a Muslim ban that would pass legal muster.

And they highlighted comments by Stephen Miller, an adviser to the president, who cast the changes to Trump’s first travel ban as mere technical adjustments aimed at ushering the same policy past the review of a court.

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