Temporary Restraining Orders on President Trump’s Revised Travel Ban
A federal judge in Hawaii issued a nationwide restraining order on the Trump administration’s revised executive order yesterday, just hours before it was scheduled to go into effect today. The judge’s ruling bars enforcement of the order temporarily, as the motion argued by the state of Hawaii had requested. Last night, another court in Maryland similarly granted an injunction, though its restraining order was comparatively less broad.
What does the restraining order do?
Similar to the restraining order on President Trump’s first travel ban, the decision in Hawaii preserves the status quo. Until the plaintiffs and government participate in subsequent, more elaborate hearings, the administration is prohibited from enforcing two key components of the executive order: Section 2, which imposes a 90-day suspension on entry into the U.S. of citizens from six predominately Muslim countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen; and Section 6, which suspends the U.S. Refugee Admissions Program for 120 days. Accordingly, unless and until the administration prevails in further proceedings, both people from the targeted countries and refugees with valid travel documents are permitted to enter the country, and the State Department will not cease processing applications for refugee status.
Why was the restraining order issued?
At the core of the court rulings were the executive order’s religious subtext and larger context in which it was developed. In Hawaii, plaintiff Ismail Elshikh, an American citizen of Egyptian descent, and the state argued that President Trump’s travel ban amounted to “discrimination in violation of both the Constitution and the [Immigration and Nationality Act]…on the basis of their religion and national origin.” The court agreed, finding that the travel ban could not be textually neutral to Islam, as the government had alleged, after having been proposed and drafted in a context, prominently featuring the president himself, rife with indications of its true intent. The judge additionally signaled that national security was merely a pretext for the travel ban, and accepted Mr. Elshikh’s evidence of “direct, concrete” legal injuries that have occurred and will continue to occur as a consequence of the ban’s enforcement.
The Maryland court’s decision declined to enjoin the entire executive order, instead ruling that the administration’s singling out six countries appeared to violate the Establishment Clause.
What happens next?
Neither of the rulings yesterday completely decided the constitutionality of the revised executive order, and the administration expressed confidence that the restraining orders will be lifted and the ban ultimately enforced after it succeeds on appeal. Of course, President Trump publicly vowed to appeal judicial setbacks to implementing his first executive order all the way to the Supreme Court, but the administration in the end chose to revise the executive order. Interestingly, the appellate court circuit covering Hawaii is the same that effectively quashed the president’s first travel ban last month.
The duration of the temporary restraining orders is not indefinite, and the president of the United States commands broad constitutional authority to determine who is and is not eligible to enter the country. This iteration of President Trump’s travel ban may survive pending appeals. In fact, the federal court in Hawaii conceded that in efforts “to address the security concerns of the nation…context may change during the course of litigation, and the Court is prepared to respond accordingly.” In light of these considerations, we offer two recommendations as precautions.
A pillar of U.S. constitutional law is the separation of powers, and a manifestation of this concept is the judiciary’s robust checking of the executive branch’s actions. This was on display last month in challenges to the first travel ban, yesterday with the revised executive order, and indeed every day and in every jurisdiction in which people demand their rights be recognized. Attorneys serve as officers of the court, and our firm takes this responsibility seriously. At Zhang & Associates, we’re committed to participating in the process, and will always strive to ensure the government treats our clients with respect for and in compliance with the Constitution.
This is a developing story, and as more information becomes available, updates will be published on our news section.
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