A Hawaii judge ordered a temporary restraining order on President Donald Trump’s revised Muslim ban on Wednesday, just hours before it was set to go into effect.
The ban, which is a revised version of a similar executive order Trump signed just one week into office, suspends all refugee resettlement for 120 days and blocks the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days. It also limits the number of refugees the United States will accept in 2017 to 50,000, which is 60,000 less than originally planned under Obama. The ban was set to take effect at 12:01 a.m. on Thursday.
U.S. District Judge Derrick K. Watson heard Hawaii’s case, which the state filed by itself. The state argued that the ban violates the First Amendment’s establishment, as it is essentially a Muslim ban, and it also hurts the state’s tourism industry as well as local businesses and universities who could no longer find the best talent under the ban. They also argued that it violated equal protection under the Fifth Amendment’s due process clause and violated the Immigration and Nationality Act by discriminating against nationality.
Ismail Elshikh, the imam of the Muslim Association of Hawaii, was another plaintiff in the case. Elshikh, who is of Egyptian descent, said that his Syrian mother-in-law’s application for an immigrant visa was still being processed after it was put on hold after Trump’s first ban.
Hawaii was the first state to challenge Trump’s revised ban, arguing that it is strikingly similar to the first version. “Nothing of substance has changed: There is the same blanket ban on entry from Muslim-majority countries [minus one],” state attorney general Doug Chin said in a statement after the state called for a restraining order.
The Hawaii District Court’s ruling on Wednesday called into question whether the ban is violating the First Amendment. The First Amendment has been a serious concern in legal challenges to both the first and second versions of Trump’s ban.
In a ruling on the previous ban, the question of intent was taken into consideration — that is, if it was meant to harm Muslims in particular. As ThinkProgress has previously reported, that intent could include things like the following:
Trump openly campaigned on the promise of a “total and complete shutdown of Muslims entering the United States.” The executive order includes a specific caveat for non-Muslim refugees, and the day that it was signed, Trump went on Christian Broadcasting Network and said Christian refugees in particular would be given priority. The next day, Rudy Giuliani, one of his advisers, went on Fox News and said that the order came about after Trump asked him about the best way to do a Muslim ban “legally.” The son of recently resigned National Security Advisor Michael Flynn similarly called it a Muslim ban on Twitter. All of these data points could be considered in a final ruling on the current ban — or in a decision on the possible revised ban.
The new ban doesn’t solve that legal problem, and the Wednesday’s ruling seems to acknowledge that.
“The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause to a purely mathematical exercise,” the ruling read. “Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7 percent to 99.8 percent. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam.”
The hearing also specifically cited Stephen Miller’s recent comments about the revised Muslim ban only having “minor technical differences” from the first version.
Eight states have challenged Trump’s ban: California, Maryland, Oregon, Massachusetts, New York, Washington, Minnesota, and Hawaii. Three hearings were held across the country Wednesday over the ban, but rulings have yet to be issued on the other two.