By Josh Gerstein
March 30, 2017
A judge in Hawaii has extended a broad block on President Donald Trump’s revised travel ban, turning aside pleas from the federal government to narrow or drop an earlier order forbidding the president from implementing key parts of his plan.
In a ruling Wednesday, U.S. District Court Judge Derrick Watson converted the temporary restraining order he issued into a preliminary injunction. He did not alter his earlier instruction that the federal government be barred from implementing a ban on issuance of visas to citizens of six majority-Muslim countries and from carrying out a plan to suspend refugee admissions worldwide.
Although Trump redrafted an earlier version of the executive order that was blocked by other federal courts, Watson said the revised version still appeared to be driven by anti-Muslim sentiment. And he again flatly rejected the Justice Department’s calls to ignore Trump’s public statements about seeking a ban on immigration and travel from Muslim countries in order to fend off terrorism.
“Where the ‘historical context and “the specific sequence of events leading up to”‘ the adoption of the challenged Executive Order are as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder that the Government urges the Court to altogether ignore that history and context,” Watson wrote. “The Court, however, declines to do so. … The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.”
The Justice Department said it “strongly disagrees” with the federal district court’s ruling.
“The President’s Executive Order falls squarely within his lawful authority in seeking to protect our Nation’s security, and the Department will continue to defend this Executive Order in the courts,” an agency spokeswoman said.
After the judge blocked Trump’s revised order two weeks ago, the president told a crowd in Nashville that the new directive amounted to “a watered-down version of the first one.” Watson cited that statement in his ruling Wednesday.
The judge said he was sensitive to concerns that Trump’s public remarks from the presidential campaign and since taking office should not forever preclude him from taking necessary security steps, but that the Justice Department had failed to show a bona fide difference in the motivation behind the second executive order.
“The Court recognizes that it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation,” Watson wrote. “Based upon the preliminary record available, however, one cannot conclude that the actions taken during the interval between [the] revoked Executive Order .. and the new Executive Order represent ‘genuine changes in constitutionally significant conditions.'”
Watson also specifically declined to rein in his decision to cover only the 90-day ban on visa issuance, saying that the federal government’s request that he do so “makes little sense” and that federal officials failed to provide a clear way for him to segregate “internal” policy review aspects of Trump’s order from provisions like the visa ban and refugee halt.
The Obama appointee’s latest ruling came after a hearing earlier Wednesday in federal court in Honolulu where lawyers for the State of Hawaii and for a local Muslim leader squared off with a Justice Department attorney.
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An appeal to the San Francisco-based 9th Circuit Court of Appeals is expected. Last month, a three-judge panel of that court declined to disturb a Seattle-based federal judge’s broad order blocking key parts of Trump’s original executive order.
The Trump administration has already appealed a narrower ruling by a federal judge in Maryland, who blocked the visa-ban provision of Trump’s revised order at the request of refugee aid groups and others. That appeal is pending at the Richmond, Virginia-based 4th Circuit, which is considering whether to have the appeal decided by the court’s full 15-member bench instead of the typical smaller panel.
In a filing with the 4th Circuit earlier Wednesday, the Justice Department said it did not object to the initial “en banc” hearing that appeals court is mulling, but supported the idea only if it would not delay a ruling on the appeal.
Further appeals or emergency applications to the Supreme Court are expected from whoever loses in the appeals court showdowns over the signature Trump policy initiative.
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