Relying heavily upon President Trump’s own words, a federal judge in Honolulu ruled Wednesday afternoon that the revised presidential order against immigration from the Mideast appears to be explicitly aimed at Muslims because of hostility to their religion, and is likely to be ruled unconstitutional.
Based primarily upon that interpretation, U.S. District Judge Derrick K. Watson temporarily barred the government from enforcing the two main restrictions in the new Trump order that was issued nine days ago and had been scheduled to go into cffect at one minute after midnight tonight (East Coast time).
The temporary 90-day ban on entry into the U.S. of all nationals of six Mideast nations and the temporary 120-day ban on entry of refugees from any nation were blocked, the judge declared, “in all places, including the United States, at all borders and ports of entry, and in the issuance of visas.” That order will stand until “further orders from this court.”
The ruling is not a final declaration that the presidential order will ultimately be struck down, but it was a finding that the state of Hawaii and one of its Muslim citizens – the imam of a mosque – would be likely when the case is fully reviewed to win on the argument that the revised order violates the Constitution’s ban on discrimination against a particular religion.
Judge Watson found extensive evidence that the President and key aides intended the revised order, as well as the original version, to be based on “animus” toward Muslims. He found that this interpretation outweighed government claims that the orders were intended to protect the nation from the threat of terrorism.
The Honolulu judge issued his 43-page ruling within hours after holding a hearing on the challenge. It was obvious that much of the opinion’s detailed legal analysis had been drafted based upon the written filings in the case, before the hearing.
Meanwhile, federal judges in a Maryland suburb of Washington, D.C., and in Seattle also had held hearings on challenges to the executive order on Wednesday, and were expected to rule promptly. The Seattle jurist, U.S. District Judge James L. Robart, last month had blocked the original version of the Trump travel restrictions.
President Trump, in a campaign-style rally in Nashville, Tenn., Wednesday night, said “we will appeal this terrible ruling,” and would pursue that effort “all the way to the Supreme Court. We’re going to win it.”
An appeal under normal procedure would go first to the U.S. Court of Appeals for the Ninth Circuit – the same tribunal that last month rejected an Administration objection to the Seattle judge’s order ending enforcement of the original Trump executive order.
The government, though, does have the option of asking the Supreme Court to allow an initial appeal directly to the Justices, bypassing the Ninth Circuit Court. In his reaction to the Hawaii order Wednesday night, the President was sharply critical of the Ninth Circuit Court, whose rulings, he said, are often overturned.
After the original version was blocked by the courts, the Administration chose not to try to take that case on to the Supreme Court. It chose, instead, to draft a revised order, which government lawyers defended Wednesday in the three federal court hearings by arguing that the problems found in the original version had been overcome.
The state of Hawaii, joined in the case by a Muslim imam, had raised a variety of constitutional and federal statutory arguments against the revised version. Judge Watson singled out just the claim that the new version is likely to be ruled to be a violation of the First Amendment’s religion clauses because of his finding that new order appeared to be a Muslim ban.
The judge said that, as the Hawaii case unfolds further, he might accept an attempt by the Trump Administration to convince him that it has abandoned any hostility to Muslims as a reason for the restrictions. However, he did not say what such an argument might be.
He flatly rejected the existing arguments of the Administration in its attempts to refute an anti-Muslim intent: that it targeted only six of the Muslim-majority nations, not all of them, and that it was aimed at territories rather than religions.
Meanwhile, President Trump got some strong encouragement for a new appeal to the Ninth Circuit Court when five of its judges on Wednesday took the highly unusual step of publicly expressing their view that the Circuit Court’s three-judge panel was wrong in ruling against the initial Trump executive order last month. They spoke out in a new opinion in a case that is no longer active, because the Administration voluntarily abandoned its original appeal after it decided to issue a revised version of the immigration restrictions.
The unusual step occurred on Wednesday as a result of three facts: first, when the three-judge panel dismissed the case at the request of the Administration, it did not simultaneously take off the books the precedent set by the panel in its ruling against the government; second, an unidentified judge of the Circuit Court called for a new vote of the full, or en banc, Circuit Court on whether to vacate the panel’s precedent, and, third, a majority of the full court voted against reopening that case.
The Ninth Circuit Court has 28 members who are eligible to vote on whether to grant en banc review of a panel’s decision, and it takes a majority to do so.
On Wednesday, the Circuit Court revealed that the plea for a new review had failed to get majority support for a new review. The three members of the panel joined in the denial of the new review. The order indicated that five judges had dissented from the denial, that one of those judges had written a dissent, and that other judges might be issuing opinions later.
Circuit Judge Jay S. Bybee wrote a 26-page dissenting opinion, with the support of four others, arguing that the panel ruling was wrong and that the initial executive order was clearly within the president’s power to make and execute immigration policy. Joining in that dissent were Circuit Judges Carlos T. Bea, Consuelo M. Callahan, Sandra S. Ikuta and Alex Kozinski.
One of the Ninth Circuit Court’s most controversial and most liberal judges, Stephen Reinhardt, wrote separately to express pride in the independence of the judiciary.
If the Trump Administration does pursue a new appeal, it is unclear whether any of the five judges who dissented on Wednesday would be hearing that case, but their new statement seems sure to embolden government lawyers in defending the revised presidential order.
(NOTE: This post also appears today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)