Constitution Daily

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New Trump immigration order blocked

October 17, 2017 by Lyle Denniston

 

President Trump’s third attempt to put strict new limits on immigration from Mideast nations – like the first two – ran into trouble in federal court on Tuesday, with a judge in Hawaii blocking it from going into full effect at midnight. (UPDATE: The Justice Department said it would pursue an “expeditious appeal.)

In a 40-page ruling, U.S. District Judge Derrick K. Watson of Honolulu concluded that the latest version “suffers from precisely the same maladies.”  He said the presidential order, issued September 24, “lacks sufficient findings that the entry of more than 150 million individuals from six specified countries” can be legally barred under federal immigration laws.

The judge also found that the restrictions “plainly discriminate on the basis of nationality,” which immigration law also forbids.

Although the latest Trump order was applied to eight countries, the state of Hawaii and other challengers had sued to stop enforcement only as to the six countries on the list that have majority or heavy populations of Muslims.  The other two on the list – North Korea and Venezuela – were not included in the lawsuit in Judge Watson’s court.

A similar lawsuit against the third version of the immigration restrictions is awaiting a ruling by a judge in a separate case in Maryland.  A hearing was held in that case on Monday, so the judge could act at any time.

Technically, the Hawaii ruling came in the form of a temporary order that blocks enforcement everywhere in the nation of the curbs on entry from the six nations only until the judge can consider whether to make his action more permanent.   The judge indicated that he might take that additional step without a hearing and without any further filing of legal briefs, if both sides consented to it.  Otherwise, he said he would hold a prompt hearing on that question.

Judge Watson refused to put his ruling on hold, even temporarily, so the only way the Trump Administration could move ahead with enforcement Tuesday night would be if it sought and obtained an order from a higher court to allow that.  The Administration has the option of seeking a delay either from the U.S. Court of Appeals for the Ninth Circuit or at the Supreme Court if the Ninth Circuit Court refuses.

The Ninth Circuit Court earlier had upheld a prior ruling by Judge Watson against the second Trump executive order, which had been issued in March.  And the Honolulu judge relied heavily on Monday on that earlier Circuit Court ruling in finding that the third approach, too, does not satisfy federal immigration laws.   The ruling did not involve any conclusion about the constitutionality of the new Trump order.

The president’s third order has many of the features of prior versions, especially the second one, but it is significantly different in that the restrictions would be made permanently.  Under the second version, entry of individuals from Muslim-dominated countries was barred only for a 90-day period.  That period ran out on September 24, and was replaced by the third executive order.

Under Monday’s ruling in Honolulu, entry restrictions cannot be enforced against foreign nationals from Chad, Iran, Libya, Somalia, Syria and Yemen.  For Chad, Libya and Yemen, the order would forbid the entry of those seeking to live in the U.S., those seeking merely to visit the nation, and those specifically traveling on tourist or business visas.   For Iran, immigrants and travelers would be barred, but not student and exchange visitors with visas.  For Syria and Somalia, the order would bar entry of immigrants and travelers.

Although the judge made no final decision that the third order is invalid, he did conclude that the challengers had shown a “strong likelihood” that they will be able to prove that it was, after further review.  Such a tentative conclusion is all that is needed, under federal court rules, to stop an action from taking effect.

The controversy over immigration restrictions during the Trump Administration, which got started soon after the new President’s inauguration in January, seems sure to return to the Supreme Court, perhaps in a matter of days.  The Justices had agreed to rule on the legality of the second version of the restrictions, but passed that up after the third version came out.

The President and his aides have also moved to put restrictions on entry into the U.S. of foreign refugees, from anywhere in the world, but those provisions were not included in the third presidential order, and some of those are now being enforced – at least until the temporary suspension of refugees’ entry expires next Tuesday.  The Administration has said it is likely to adopt new restrictions on refugee entry after that, so that part of the controversy could be renewed, too.

In stopping enforcement of the restrictions on foreign nationals from the six newly designated nations in the Mideast, the Honolulu judge cited the claim of the challengers that President Trump’s desire to impose such restrictions has become a desire for one in which “the tougher, the better.”  The judge, however, did not assess whether the President was motivated by hostility to Muslims, as the challengers had argued.

In ruling temporarily for the challengers, the judge rejected the claims by Administration lawyers that the challenge was premature because none of those involved in the lawsuit had yet been denied an entry visa, and that the courts simply had no authority to decide the challenge, at least so far as it was based on federal immigration laws.

Judge Watson called “troubling” the argument that the courts should stay out of this controversy altogether, saying that was a plea for the court to ignore its fundamental responsibility to decide controversies before it.  Government power over immigration is “broad,” but “not boundless,” the judge wrote.

Turning to the actual terms of the third version, the judge said the claims of the Administration about the goals it was seeking “do not fit the restrictions that the order actually imposes.”  The order’s provisions are based on nationality, the judge noted, but he said the government had not shown that nationality alone would cause a security risk if the U.S. allowed entry of foreign nationals from the six designated countries.   And, the judge concluded, immigration laws do not allow entry bans based on nationality.

Moreover, Judge Watson declared, the government has made no finding that nationals from those nations are, as a group, tied to terrorism.  What the order says about each of those countries, the opinion added, is general in nature and “do not support the vast scope” of the order, restricting entry of the entire populations of men, women and children.

To the government’s claims in the order that the six designated countries do not have the capacity to provide information on possible terrorist threats that their nationals might pose, the judge replied that there are other nations that also would not have that capacity, yet they are not covered by the order – such as Iraq.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

 

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