The State Of Hawaii Offers A Muscular Argument For Extending The TRO — Against Ban 2.0

[UPDATED: The able federal District Court Judge Derrick Watson, sitting in Honolulu, has granted the TRO scheduling order, and set in motion arguments — to conclude by March 15, 2017 at Noon local, in Hawaii. Onward.] Oh my. Good morning. . . . The State of Hawaii is now on file, and so. . . I’ll set out just a few of the Constitutional bases for the to-be-extended TRO first, then a solid statutory one, below. But make no mistake — Ban 2.0 will fail. Utterly.

I want to particularly point out the last paragraph in blue, below — as we haven’t mentioned it since late January. That is the section of the Immigration and Nationality Act that President Lyndon Johnson signed, as amended — in the shadow of the Statue of Liberty, in 1965. It did away with harsh quotas — and tests based on nationality or religious affiliation. Mr. Trump cannot change that without an entirely new act of Congress. He simply lacks the power. Here is the full 40 page PDF motion for the extended TRO, and the bit:

. . . .Plaintiff Ismail Elshikh, PhD, the Imam of the Muslim Association of Hawai‘i, joins the State in its challenge because the Executive Order inflicts a grave injury on Muslims in Hawai‘i, including Dr. Elshikh, his family, and members of his Mosque. . . .

The White House originally indicated it would sign the new Executive Order on Wednesday, February 29, 2017, but then postponed the announcement. One Administration official told a news outlet on February 28 that a reason for President Trump’s delay in signing an updated Executive Order was “the busy news cycle,” and the desire of the President that the new order “get plenty of attention. . . .”

A senior Administration official told a different news outlet on March 1, 2017, that a related reason for the delay in releasing the updated Executive Order was the “positive reaction” to President Trump’s “first address to Congress” on the evening of Tuesday, February 28, 2017. That article reported that “[s]igning the executive order Wednesday, as originally indicated by the White House, would have undercut the favorable coverage,” and the senior Administration official “didn’t deny the positive reception was part of the [A]dministration’s calculus in pushing back the travel ban announcement.”. . .

The Establishment Clause of the First Amendment prohibits the Federal Government from officially preferring one religion over another.

Sections 2 and 6 of President Trump’s March 6, 2017 Executive Order, as well as Defendants’ statements regarding the Executive Order and their actions to implement it, are intended to disfavor Islam.

Sections 2 and 6 of the Executive Order, as well as Defendants’ statements regarding the Executive Order and their actions to implement it, have the effect of disfavoring Islam.

Through their actions described in this Complaint, Defendants have violated the Establishment Clause. Defendants’ violation inflicts ongoing harm upon Dr. Elshikh, his family, and members of his Mosque, as well as other Hawai‘i residents and the sovereign interests of the State of Hawai‘i. . . .

The March 6, 2017 Executive Order was motivated by animus and a desire to discriminate on the basis of religion and/or national origin, nationality, or alienage.

The Executive Order differentiates between people based on their religion and/or national origin, nationality, or alienage and is accordingly subject to strict scrutiny. It fails that test, because it is over- and under-inclusive in restricting immigration for security reasons. The statements of President Trump and his advisors also provide direct evidence of the Executive Order’s discriminatory motivations. . . .

The Immigration and Nationality Act provides that “[e]xcept as specifically provided” in certain other subsections of that Act, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A). . . .

Mr. Trump is. . . only a man. Not a king. Mr. Trump serves us, the people, not the other way around. Onward.

[Late afternoon update — in the Ninth Circuit, the Trump administration has dropped its appeal of the nationwide TRO there. The litigation now continues in the trial court in Seattle — I’d expect motions from the State of Washington lawyers, much along the lines of those filed by lawyers for the State of Hawaii, overnight. I’d expect much the same, in Brooklyn and Alexandria, Virginia as well — soon. Now you know. End of update.]



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