In separate rulings on Wednesday, two judges blocked President Donald Trump’s revised Muslim ban.
U.S. District Judge Derrick K. Watson in Hawaii granted a temporary restraining order, ruling that not only is the ban discriminatory but it will also negatively impact the state. He points to Trump’s very own words to validate the plaintiffs’ case:
“The Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decisionmakers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts.’ The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’”
In defense of the ban, the government said that the ban is not discriminatory against a particular religion because it “applies to all individuals in those countries, regardless of their religion.” Further, the government argues that the six countries the ban affects “represent only a small fraction of the world’s 50 Muslim-majority nations.”
Judge Watson rejects this “fundamentally flawed” argument.
“The illogic of the Government’s contentions is palpable,” the judge wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
“Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims,” Judge Watson writes.
Reports from the Department of Homeland Security directly contradict some of the logic behind the president’s newest Muslim ban.
An expedited hearing will be scheduled to determine if the temporary restraining order should be extended.
Sarah Isgur Flores, a spokesperson for the Department of Justice, issued a statement after the ruling.
“The Department of Justice strongly disagrees with the federal district court’s ruling, which is flawed both in reasoning and in scope,” Isgur said. “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.”
At a rally in Nashville, Tenn., on Wednesday night, Trump called the ruling in Hawaii “unprecedented overreach.” He said he would take the case “as far as it needs to go,” possibly all the way to the Supreme Court.
Separately, U.S. District Judge Theodore D. Chuang also ruled, in part, against the Muslim ban.
Judge Chuang’s ruling is narrower in scope than Judge Watson’s. He ruled against banning travel from the six Muslim-majority countries targeted by the second order. However, for the ban on refugees and the other portions of the order, “Plaintiffs have not provided a sufficient basis to establish their validity,” according to the ruling.
Like Judge Watson, Judge Chuang references Trump’s own words in pointing out that the ban is in fact discriminatory against Muslims. He cites a July 2016 interview, at which time “Trump asserted that immigration should be immediately suspended ‘from any nation that has been compromised by terrorism.’ When questioned whether his new formulation was a ‘rollback’ of his call for a ‘Muslim ban,’ he described it as an ‘expansion.’”
More recently, Judge Chuang points out, Trump’s own staff members said that the two executive orders were, in effect, functionally the same.
“Stephen Miller, Senior Policy Advisor to the President, described the forthcoming changes [in the second order] as ‘mostly minor technical differences,’ and stated that the ‘basic policies are still going to be in effect.’ When the Second Executive Order was signed on March 6, 2017, White House Press Secretary Sean Spicer stated that “[t]he principles of the [second] executive order remain the same.’”
Judge Chuang also notes that the government failed to prove that the ban will be a benefit to national security:
“When government chooses sides among religions, the ‘inevitable result’ is ‘hatred, disrespect, and even contempt’ from those who adhere to different beliefs. Thus, to avoid sowing seeds of division in our nation, upholding this fundamental constitutional principle at the core of our Nation’s identity plainly serves a significant public interest.
“At the same time, the Supreme Court has stated that ‘no government interest is more compelling than the security of the Nation.’ Defendants, however, have not shown, or even asserted, that national security cannot be maintained without an unprecedented six-country travel ban, a measure that has not been deemed necessary, at any other time in recent history. Thus, the balance of equities and the public interest favor the issuance of an injunction.”
A Pew Research Center study called the arrival of immigrants “perhaps the most important component of the growth in the working-age population.”
At the Tennessee rally, Trump said, “Let me tell you something. I think we ought to go back to the first one and go all the way.
“The danger is clear, the law is clear, the need for my executive order is clear,” he said.
Notably, two recent Department of Homeland Security (DHS) reports found evidence that undermine the logic behind the Muslim ban. According to the draft of one, obtained by the AP, “citizenship is unlikely to be a reliable indicator of potential terrorist activity.”
Between March 2011 and the present, the text reports on “at least 82 primarily US-based individuals, who died in the pursuit of or were convicted of any terrorism-related federal offense inspired by a foreign terrorist organization.” Of those 82 people, a little more than half were born in the United States.
“Of the foreign-born individuals, they came from 26 different countries, with no one country representing more than 13.5 percent of the foreign-born total,” according to the text.
A separate DHS intelligence report, exclusively obtained by The Rachel Maddow Show, found that “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.”
On average, the DHS found, people radicalize 13 years after they enter the country.
The countries impacted by Trump’s original order were Iran, Libya, Somalia, Sudan, Syria, Yemen and Iraq. Iraq is not included in the new order. The new order also no longer permanently bans Syrian refugees, but it still includes a 120-day suspension for refugees. It does not contain language that would have given Christian refugees priority. Additionally, the order states that no more than 50,000 refugees will be granted entry to the United States in fiscal year 2017. It was scheduled to go into effect on March 16.
The revised executive order “will cause severe and immediate harms,” according to a complaint filed Monday.