On March 29, 2017, the U.S District Court for the District of Hawaii granted a nationwide preliminary injunction against the implementation of specified provisions within President Trump’s Executive Order on immigration, which would have prevented nationals of six predominantly Muslim counties from entering the U.S for a period of 90 days and suspended the U.S refugee program for 120 days.

U.S District Court Judge Derrick Watson concluded that, on the record before him, the Plaintiffs had “met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim”. The Judge therefore granted their application for a nationwide preliminary injunction, in respect of the purported travel ban and suspension of the U.S refugee program.

Background

The hearing, which is a significant blow to the Trump administration, comes two weeks after the same Judge granted a nationwide Temporary Restraining Order, preventing implementation of the relevant provisions of the Executive Order for a limited period of time.

U.S District Court Judge Derrick Watson granted the Temporary Restraining Order, on the basis that the Executive Order likely violates the Establishment Clause of the Constitution, by disproportionately affecting Muslims. However, as the name suggests, Temporary Restraining Orders are intended only to be temporary in nature. The Plaintiffs subsequently sought a preliminary injunction, to ensure implementation of the Executive Order is suspended indefinitely, pending resolution of the ongoing lawsuit and subject to any appeal.

Oral Arguments

During the hearing on March 29, 2017, U.S District Court Judge Watson heard oral arguments from both parties.

In oral argument on behalf of the Plaintiff, State Attorney General Douglas Chin likened the revised Executive Order to a neon sign, flashing: “Muslim ban, Muslim ban” that the Trump Administration “did not bother to turn off”. The State Attorney General contended that granting a preliminary injunction until resolution of the lawsuit would safeguard the Constitutional rights of Muslim citizens across the U.S, after the “repeated stops and starts of the last two months”.  Indeed, the State Attorney General remarked “We cannot fault the President for being politically incorrect, but we do fault him for being Constitutionally incorrect”.

For the Government, Department of Justice Attorney Chad Readler submitted that the Executive Order fell squarely within President Trump’s lawful authority to protect U.S national security. In respect of the U.S refugee program, the Department of Justice Attorney contended that suspension of the U.S refugee program had no effect on the State of Hawaii.

 

Judgment

In his judgment, U.S District Court Judge Watson considered approximately 20 to 25 statements made by Donald Trump regarding Muslims, both as a Presidential candidate and as President, pursuant to U.S Supreme Court authority.

The Judge determined that the Court would “not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has”. The U.S District Court ruled that the Plaintiff had discharged the burden of proof in respect of its application and, accordingly, granted the nationwide preliminary injunction.

Appeal

On March 20, 2017 the Department of Justice filed a notice to appeal against the preliminary injunction granted by the U.S District Court for the District of Hawaii, to the Ninth Circuit Court of Appeals.

It is noteworthy that the U.S Government is already appealing an unrelated case in Maryland to the Fourth Circuit Court of Appeals. In that case, U.S. District Court Judge Theodore D. Chuang granted a nationwide preliminary injunction against the suspension of the issuance of visas to nationals of the six named countries only.

Like U.S District Court Judge Watson in Hawaii, U.S District Court Judge Chuang considered statements made by Donald Trump during his Presidential campaign at length during the hearing. U.S District Court Judge Chuang concluded “These statements, which include explicit, direct statements of President Trump’s animus toward Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the first Executive Order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban”. On that basis, the Judge granted a preliminary injunction, preventing the U.S Government from suspending the issuance of visas to nationals of the countries in question.

However, U.S District Court Judge Chuang ruled that the Plaintiff had “not provided a sufficient basis” for him to declare the other sections of the Executive Order invalid. The Fourth Circuit Court of Appeals is due to hear the case on May 8, 2017.

The U.S Supreme Court

At a rally in Nashville, President Trump expressed a desire to appeal any attempt to prevent implementation of his revised Executive Order on immigration to the U.S Supreme Court, if necessary.

In any event, it seems there is a real possibility the case may be appealed to the U.S Supreme Court in due course. Indeed, the U.S District Court for the District of Hawaii granted a preliminary injunction which extended far beyond the preliminary injunction granted by the U.S District Court in Maryland. If the Fourth Circuit Court of Appeals rule in favor of the Trump Administration on some issues and the Ninth Circuit Court of Appeals rule against the Trump Administration on the same issues, there will be a split in authority between Federal Courts in different parts of the U.S and confusion over the current status of the Executive Order. There is, therefore, a real possibility the case may be appealed to the U.S Supreme Court, for a definitive decision.

Davies Legal

At Davies Legal, we are passionate about facilitating access to justice and assisting those in need. We hope the respective Courts of Appeals will rule in favor of the Plaintiffs in the aforementioned cases and declare the Executive Order unconstitutional.

Our team have extensive experience of representing clients in connection with all types of immigrant and non-immigrant visa applications, arising from family, employment and business circumstances. Call now for advice on how we can assist you with your case and for a complimentary price quotation.

Published: 7th April 2017