HONOLULU — A federal judge in Hawaii will keep President Trump from enforcing his new travel and refugee bans for the foreseeable future.
The president’s and his advisers’ own words about what Trump called a "watered-down" version of the original executive order halting immigration from several Muslim-majority countries and suspending the US refugee program helped persuade the judge, Derrick Watson, on Wednesday to continue blocking the Trump administration from enforcing the new versions.
The state of Hawaii — one of several states challenging the bans in court — had argued that despite efforts by the administration to make the new executive order religion-neutral, at least on its face, the government couldn't escape earlier comments by Trump and his advisors about "the implementation of a 'Muslim ban.'"
"The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has," Watson wrote.
Watson issued the nationwide preliminary injunction against enforcement of Trump's second executive order on the topic hours after holding arguments in the case. Watson said following the morning arguments in Hawaii that he would make a decision before the end of the day on whether to extend the existing temporary restraining order (TRO) against the bans. He did so, as the state of Hawaii requested, by issuing a preliminary injunction. Unlike a TRO, which lasts only for a limited period of time, the injunction issued Wednesday will stay in effect — absent a contrary order from a higher court — while Hawaii's lawsuit challenging the travel ban works its way through the courts.
As he had done previously, Watson found that the travel and refugee bans likely violate the Establishment Clause of the US Constitution. In doing so, Watson took strong exception to the Justice Department's argument that external evidence beyond the executive order should not be relevant.
"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."
And though the Justice Department urged Watson to at least narrow the scope of the injunction from what the TRO had done — it halted enforcement of all of sections 2 and 6 of the executive order, the travel and refugee bans — the judge declined to do so, ruling that "there is no basis to narrow the Court’s ruling in the manner requested by the Federal Defendants."
Watson initially issued the TRO on March 15, prohibiting enforcement of two key provisions of the executive order that Trump signed on March 6. The executive order temporarily suspends immigration from six Muslim-majority countries as well as the US refugee program. Watson's order came just one day before Trump's second travel and refugee ban was set to take effect. The new ban came after the administration faced a series of court losses across the country on the original version, which Trump signed on Jan. 27.
The FBI confirmed to BuzzFeed News that Watson started receiving death threats after the decision and that the US Marshals Service is protecting him.
In court on Wednesday, Hawaii Attorney General Doug Chin argued that it didn't matter that the language from Trump's original executive order had been revised to be more religion-neutral in the new ban, because the preference for one religion over another was still apparent.
"The animus is still palpable," Chin said.
Chad Readler, the acting head of the Civil Division at the US Department of Justice, argued — over speakerphone — that the revised executive order is within the president's power and that Hawaii failed to quantifiably show it would suffer "irreparable harm" if Watson's order wasn't extended. The challengers are seeking a ruling from Watson converting his temporary restraining order into a longer-term preliminary injunction.
Watson questioned Readler about the argument that Hawaii had failed to prove harm because only 20 refugees have been resettled in the state since 2010.
"Is this a mathematical exercise?" Watson asked. He then asked how many refugee resettlements the government thought would be needed to prove irreparable harm.
The judge later got snappy with Readler when the administration's attorney tried to argue that tourism data offered by the state of Hawaii and statistics on enrollment and recruiting at the University of Hawaii were too vague, particularly since Trump's travel ban hadn't been in effect long enough to have an impact.
Watson asked Readler to submit his own evidence, which the attorney did not have.
“You’re arguing it now," Watson said. "Where’s the evidence?”
At a news conference after the hearing, Chin said he was hopeful that the judge would extend the freeze on Trump's executive order, given the nature of Watson's questions to Readler.
After Watson issued his order, Chin said in a statement that the ruling means people will face "less uncertainty" for the time being.
"This is an important affirmation of the values of religious freedom enshrined in our Constitution’s First Amendment. With a preliminary injunction in place, people in Hawaii with family in the six affected Muslim-majority countries – as well as Hawaii students, travelers, and refugees across the world – face less uncertainty," he said. "While we understand that the President may appeal, we believe the court’s well-reasoned decision will be affirmed."
As the case in Hawaii moves forward, another challenge to Trump's executive order is already before a federal appeals court. A Maryland federal judge issued an order earlier this month halting enforcement of the travel ban section of the latest executive order. The Justice Department has already appealed that decision, and the US Court of Appeals for the Fourth Circuit is considering whether to have a full sitting of the court, instead of a three-judge panel, hear arguments.