- By Kavitha SuranaKavitha Surana is an editorial fellow at Foreign Policy, where she produces breaking news and original reports with a particular focus on immigration, counterterrorism, and border security policy. Previously, Kavitha worked at New York magazine’s Bedford + Bowery blog, CNNMoney, The Associated Press in Italy, and Fareed Zakaria GPS and has freelanced from Italy and Germany for publications like Quartz, Al Jazeera America, OZY, and GlobalPost/PRI. In 2015, she was awarded a Fulbright trip to Germany, as well as a grant from the Heinrich Böll Foundation to report on migration and integration. She also reported from Senegal with a grant from the Bureau for International Reporting in 2014. Kavitha studied European history at Columbia University and holds a master’s degree in journalism and European studies from New York University. She has studied in Italy and Peru and speaks Italian, Spanish, Portuguese, and French., Molly O’TooleMolly O’Toole is a senior reporter at Foreign Policy, covering immigration, refugees, and national security. She was FP’s sole 2016 presidential campaign reporter, on the trail from New Hampshire to Nevada. Previously, she covered the politics of national security for Atlantic Media’s Defense One, where she reported from Congress, the White House, the Pentagon, and the State Department. Before that, she was a news editor at the Huffington Post. Molly has also reported on national and international politics for Reuters, the Nation, The Associated Press, and Newsweek International, among others, from Washington, New York, Mexico City, and London. She received her dual master’s degree in journalism and international relations from New York University and her bachelor’s from Cornell University and in 2016 was a grant recipient of the International Women’s Media Foundation. She will always be a Californian.
Just hours before President Donald Trump’s second ban on travellers from six majority-Muslim countries was to go into effect, a federal judge in Hawaii granted a motion for a nationwide temporary restraining order, dealing the president another defeat on one of his signature issues.
The new travel ban, announced on Mar. 6, addressed some of the glaring problems that led the first ban, issued on Jan. 27, to be blocked by the courts. It removed Iraq from the original list of seven barred countries, lifted an indefinite ban on refugees from Syria, and removed language giving preference to religious minorities. It was due to take effect Thursday.
The Trump administration argued the more recent order had been significantly narrowed after running into a “legal quagmire,” but maintained the courts did not have the right to review executive power to set immigration policy.
U.S. District Judge Derek Watson begged to differ. Watson ruled late Wednesday that the state of Hawaii demonstrated that universities would suffer financially, the economy would suffer due to lost tourism revenue, and that the executive order was based on “religious animus.” Public comments by Trump and his advisors touting a “Muslim ban” apparently helped doom the latest effort.
“A reasonable, objective observer— enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion,” Watson wrote in the ruling.
The lawyers for the latest case — and others mounting similar challenges across the country — used past statements from Trump and his officials calling for a Muslim ban. That showed, they argued, that the new ban was less about national security than discrimination against one religion. They also argued that the cleaned-up order — which removed some of the more egregious language from the original — could be construed as the admission of a mistake, highlighting the intent behind the original.
Hawaii’s complaint enumerates 11 instances where Trump made statements related to intending a Muslim ban, including statements during his campaign demanding a “total and complete shut down of Muslims entering the United States,” and pledging “If I win, they’re going back!” about Syrian refugees. It also highlighted actions from the rollout of the first executive order, such as when Trump read the title of it and said “we all know what that means.”
The court also focused on similar statements by Stephen Miller, Trump’s senior advisor, and former New York City Mayor Rudy Giuliani, a Trump ally and advisor. On Feb. 21, Miller said the new ban would have the same effect as the first one. “In terms of protecting the country, those basic policies are still going to be in effect,” he said.
While the administration maintains the latest order is not a ban on Muslims, since it removes reference to religion and targets only a fraction of the world’s Muslim population, Watson questioned that argument, potentially setting the stage for other ongoing legal challenges even as he puts a nationwide halt on the implementation. It is undisputed, the judge said, that the six countries are overwhelmingly Muslim by population.
“The illogic of the Government’s contentions is palpable,” he wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
The judge also echoed some of the skepticism from the California Ninth Circuit Court of Appeals that blocked Trump’s first travel ban. Though the administration said the ban is still needed on national security grounds, those six countries remaining on the list have not produced any real terror risks inside the United States. That led the Hawaii judge to push back against the government’s argument that the executive order could not be halted by the court without incurring a significant national security risk. The judge said the government’s evidence was “questionable.”
Two other courts considered challenges to the new ban Wednesday but by early evening had not made a separate decision. The Hawaii ruling bars any government official across the country from implementing key provisions of Trump’s latest mandate, and sets up an expedited hearing on the restraining order.
“When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ [temporary restraining order],” the ruling said. “Nationwide relief is appropriate.”
Early Thursday morning, a federal judge in Maryland issued another blow to Trump’s travel ban. In a separate case brought by refugee resettlement agencies, U.S. District Judge Theodore Chuang issued a preliminary injunction prohibiting the enforcement of the ban against travelers, but not the temporary halt to the refugee program. He cited similar reasons, including Trump’s direct statements of “animus toward Muslims and intention to impose a ban on Muslims entering the United States,” as well as Giuliani’s account “that the plan had been to bar the entry of nationals of predominantly Muslim countries.”
But Trump isn’t backing down. On Wednesday night he held a rally in Nashville, Tennessee, and decried the Hawaii court’s decision as “unprecedented judicial overreach.” He vowed to take the fight all the way to the Supreme Court.
Lawyers are likely more focused on Trump’s latest comments, adding them them to their list of statements highlighting his intent. At the rally, Trump called the new order a “watered down version of the first order.”
“This new order was tailored to the dictates of the 9th Circuit’s — in my opinion — flawed ruling,” Trump told the crowd. “And let me tell you something, I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.”
“Keep talking…” tweeted Justin Cox, a lawyer at the National Immigration Law Center working on the Maryland case, in response to Trump’s latest comments.
This post was updated at 11:00 a.m.
Photo credit: TASOS KATOPODIS/AFP/Getty Images