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Federal judge in Hawaii has blocked the major provisions of President Trump’s revised ban on refugee resettlement and travel from six predominantly Muslim countries, hours before the executive order was to take effect.

The decision struck down, at least temporarily, the Trump administration’s attempt to pause all refugee resettlement for 120 days and block citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S. for 90 days.

U.S. District Judge Derrick Watson said his ruling applies nationwide. It appears to set the stage for a battle in the 9th Circuit Court of Appeals, which last month upheld a ruling blocking Trump’s original travel ban.

The case, brought by Hawaii Atty. Gen. Douglas Chin, argued that the latest travel ban would have "profound" and "detrimental" effects on residents, businesses and universities. In its complaint, the state of Hawaii also said the executive order discriminates against Muslims and violates the equal protection and due process guarantees of the U.S. Constitution.

Considering all the countries on the list as Muslim countries is reasonable to assume it discriminates based on religion? How might this ruling hold up if taken to the Supreme Court?

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    I'm unsure of how this question should be answered. The matter is currently being litigated. What information could we provide that isn't available in the opinion, or in the briefs?
    – Publius
    Mar 19, 2017 at 14:51
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    If you can't be unbiased please do not comment/contribute...
    – Noah
    Mar 19, 2017 at 15:04
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    Asking us how the Supreme Court would decide on a case that has yet to even be brought to them is just pure speculation.
    – user1530
    Mar 19, 2017 at 17:28
  • A judge in Maryland also blocked the ban, so the Trump administration is appealing it in the 4th circuit rather than the 9th.
    – Brythan
    Mar 19, 2017 at 21:51
  • @Brythan rather than the 9th or in addition to the ninth?
    – phoog
    Mar 20, 2017 at 0:08

2 Answers 2

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As you mentioned, U.S. District Judge Derrick Watson issued a temporary restraining order which blocked the travel ban from being enforced. The judge mentioned Trump's comments on the campaign trail and based the ruling on the administration's potential intent to ban Muslims from entering the US.

Quoting from this article by CNN - the "ruling is almost entirely based on the 'intent of the Trump administration'".

The judge said it was illogical that the ban was not motivated by religious discrimination.

"The illogic of the Government's contentions is palpable," Watson wrote. "The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed."

"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."

(emphasis mine)


However, on the same day, the judges on the Ninth Circuit Court, which upheld the first TRO in February, issued an opinion1 that the revised Executive Order is constitutional.

whatever we as individuals may feel about the President or executive order, the President's decision was well within the powers of the presidency.

1The opinion issued by the judges on the Ninth Circuit Court in this case is not a decision, but a dissent from a denial of an en banc rehearing. So, the opinion isn't legally binding nor is it considered a ruling.


So,

Whether it's constitutional really depends on the perspective:

Basically, if you read the text of the Executive Order, there's no mention that it discriminates based on religion and this makes the EO entirely constitutional. However, the judge argued that Trump's comments on the campaign trail may suggest the actual intent, thus making it unconstitutional.

This paragraph from an article by Politico summaries it:

In the end, the administration’s deepest constitutional problem in this affair is entirely straightforward. The order is in fact animated by prejudice, and pretty much everyone knows it. To be sure, there’s no guarantee of how the judiciary will ultimately rule on this order; as with so much else just now, we are in uncharted waters. But when a powerful person in the public eye does something that he promised to do, the way that his organization executes the task will leave telltale signs about its motives. Our actions do usually have some connection to our actual intentions, after all. And if those intentions were previously announced, it’s harder to convince people that they aren’t seeing what it looks like they’re seeing.

(emphasis mine)

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Whether how the Supreme Court will rule on this:

It still waits to be seen. As the Trump administration has mentioned that they are going to appeal the ruling, it will be heard in the Ninth Circuit Court. So, there's a chance that it will the TRO will be cancelled since the judges have issued their opinion that it's constitutional.

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    I think it's worth clarifying that the 9th Circuit opinion in this case was not a decision, but a dissent from a denial of an en banc rehearing. Which is to say, it is not the law, nor was it a ruling on a case. The answer should be clarified so that it does not imply that the 9th Circuit has in any way held that the Executive Order is constitutional. Otherwise, I think this correctly identifies the legal question at issue here, i.e., discriminatory purpose.
    – Publius
    Mar 19, 2017 at 15:45
  • @Avi I've added that part to make it clearer. Thanks for pointing out!
    – Panda
    Mar 19, 2017 at 15:52
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If:

the reason for the court's blocking of a travel restriction put in place by the President of the United States of America for purposes of national security was because the president (when he was a candidate) mentioned something about banning certain people (i.e. those people who believe it is their duty to enslave the world under sharia law because god tells them to) during this time of war against those elements of said group who actually practice what they preach

Then:

it would mean that presidents are only constitutionally allowed to set immigration policy as it relates to national security during time of war IF AND ONLY IF that president never said anything that judges disagree with

In other words, I do not believe the blocking of the order is in any way constitutional.

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    "i.e. those people who believe it is their duty to enslave the world under sharia law because god tells them to" -- Did Trump ever mention banning only those people, or did he make claims directed at all Muslims? "during this time of war" -- When was war declared?
    – hvd
    Mar 19, 2017 at 19:53
  • Are you suggesting that until congress decides to "declare" war, war cannot exist? I never said I agreed with the ban. I said I think the blockage of it is unconstitutional. The Federal judiciary is not charged with the reading of minds. Mar 19, 2017 at 20:11
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    "Are you suggesting that until congress decides to "declare" war, war cannot exist?" -- Fair enough question, let me re-phrase mine. By what standard do you think the US is in a time of war? Was war declared, or is there another standard that applies here? And I noticed you ignored my first question. Did Trump mention banning "those people who believe it is their duty to enslave the world under sharia law because god tells them to", or did he mention banning Muslims?
    – hvd
    Mar 19, 2017 at 20:42
  • I was referring to your first question when I said the Federal judiciary is not charged with the reading of minds. I meant "Who cares what Trump said?". If what he said during the campaign was relevant, then we would need a whole bunch of new laws (not to mention Constitutional amendments) outlawing certain phrasing or trigger words. It opens an ugly can of worms. If we play the "what did he actually mean when he said..." game, we could just as easily say "When he said Muslims, he meant radicals". Mar 19, 2017 at 23:38
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    The precedent about intent is, for example, to prevent people from making rules about having a grandfather who was eligible to vote for the purpose of disenfranchising former slaves and their descendants. In other words, your assertion that judges are not charged with the reading of minds is incorrect: there is well established precedent for considering discriminatory intent when determining whether an action is unconstitutionally discriminatory.
    – phoog
    Mar 20, 2017 at 0:41

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