Hawaii judge extends order blocking Trump's travel ban indefinitely

The district judge wrote that the court would not 'pull the shutters closed and pretend it has not seen what it has,' in accepting arguments citing Trump's previous characterizations of the ban.

George Lee/The Star-Advertiser/AP/File
Honolulu US District Judge Derrick Watson hears arguments in 2015. On March 29, 2017, Judge Watson heard arguments on whether to extend his temporary order blocking President Trump’s revised travel ban.

A federal judge in Hawaii has extended an order blocking President Trump’s March 6 travel ban, putting on indefinite hold a presidential directive that had suspended new visas for citizens of six Muslim-majority countries and barred all incoming refugees for 120 days.

The ruling, by US district judge Derrick Watson, turns an earlier restraining order into a preliminary injunction, as part of a legal challenge brought by the state of Hawaii against what it alleges is an unconstitutional religious ban.

The Trump administration had asked Mr. Watson to narrow that earlier restraining order to encompass no more than the visa suspension, arguing that the halt of the US refugee program did not affect Hawaii.

That argument failed to persuade the judge, who noted that it came only after a federal judge in Maryland, in issuing a separate block of the visa suspension, said it was unclear whether the refugee ban was also motivated by religious bias.

The “entirety of the Executive Order runs afoul of the Establishment Clause,” wrote Watson in the ruling, “where 'openly available data support a commonsense conclusion that a religious objective permeated the government's action.’ ”

The decision amounts to another setback for Mr. Trump’s efforts to impose sweeping new restrictions on entry. And by bringing into the courtroom the president’s public remarks about the order, it may chart new territory in a legal gray area.

In December 2015, Trump’s campaign site said the then-candidate was promising a “total and complete shutdown of Muslims entering the United States,” a position Trump defended until months before the election, when he began to qualify the proposal in public remarks.

As The Christian Science Monitor’s Henry Gass reported in February, lawsuits challenging Trump’s earlier, January order had cited the president’s suggestion that Christian refugees would be prioritized, along with comments by campaign surrogates such as Rudy Giuliani:

But the admissibility of those comments is a legally murky area, experts say, particularly those made before Trump became president. Past statements made by an administration are normally fair game as evidence of discriminatory intent of a facially neutral executive order.

“What’s different about this case, and what the Trump administration has been saying, is you can’t take statements made during the course of a campaign to show discriminatory intent,” Steven Schwinn, a professor at the John Marshall Law School in Chicago, told the Monitor earlier this month. 

“That raises an interesting question,” he added, “whether statements made during the course of a political campaign can be grounds of discriminatory intent for government action.”

In his arguments, Hawaii state attorney general Douglas Chin quoted Trump’s characterization of the revised version of the travel ban as a “watered down” version of the original.

"We cannot fault the president for being politically incorrect, but we do fault him for being constitutionally incorrect," Mr. Chin told the judge, according to the Associated Press.

The Trump administration is appealing the decision, with its first hearing before the Fourth Circuit Court set for May 8. A ruling in favor of the administration there would likely set up a decision in the US Supreme Court.

Joining the state of Hawaii in its challenge was the imam of a Honolulu mosque, Ismail Elshikh, an Egyptian-born American citizen who argued that the ban would prevent his Syrian mother-in-law from visiting her family in Hawaii.

The state had filed its challenge on the grounds that its economy would suffer from a decline in tourism, citing reports of a “nosedive” in travel to the United States following the orders, while its state universities would encounter difficulties in recruiting students and faculty.

This report contains material by the Associated Press and Reuters.

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