President Trump’s newest executive order (“travel ban”) banning travel into the United States by any foreign national of six primarily Muslim countries was set to take effect on March 16, 2017, but mere hours before its implementation, a federal district judge in Hawaii put a stop to it by granting a temporary restraining order. This is Trump’s second attempt at implementing a controversial ban of this nature and the second time that the U.S. court system has found such an order to be unconstitutional. To learn more about the specifics of both executive orders, read our earlier blog.
Judge Derrick Watson of the District Court of Hawaii issued a nationwide temporary restraining order (TRO) holding that that the travel ban violated the First Amendment’s Establishment Clause, which forbids the federal government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” The court held that although the travel ban was not facially discriminatory because certain discriminatory language had been omitted, nonetheless the purpose of the ban was discriminatory against a religious group—Muslims.
President Trump implemented minor changes to his first executive order and made an effort to omit any inflammatory language referencing religious minorities from this new travel ban with the hopes that it would be able to withstand judicial scrutiny when introduced a second time. However, in proving that Trump still had the intention to ban Muslims from entering the country, Judge Watson used Trump’s own rhetoric over the course of his speeches and interviews independent from the text of the travel ban.
Throughout his political career, Trump has made a name for himself by speaking openly without regard to “political correctness”, but in this case, Trump finally talked himself into a corner. When he signed this latest travel ban, the president made it clear that the only reason he was reissuing this ban was to make a version of his first ban that would hold up in court. The court directly cited to his speeches and interviews in finding the newest travel ban religiously discriminatory:
During a recent interview, Trump said, “I think Islam hates us.” To which he was asked, “Is there a war between the West and radical Islam, or between the West and Islam Itself?” And he replied, “It’s very hard to separate. Because you don’t know who’s who.”
During the same interview, he said, “But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States… [a]nd of people that are not Muslim.”
During an interview last year, Trump was asked: “The Muslim ban. I think you’ve pulled back from it, but you tell me.” To which Trump responded: “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”
The TRO uses this language and other similar statements by Trump and his staff to find that the travel ban’s stated secular purpose is at least “secondary to a religious objective of temporarily suspending the entry of Muslims.”
What does this mean for the future? This is the second executive order that Trump has tried to pass banning foreign nationals from coming into the country, and this is the second time that it has been struck down. If Trump wants to try to again implement an executive order banning immigrants from certain countries, he will have to take a radically different approach that will include facially neutral language along with a purely secular purpose. In so doing, it seems unlikely that he will be able to continue to target the six primarily Muslim countries at issue in this current travel ban to the same extent. For now, we can only wait and see what the future of immigration will look like. For more information or for help relating to these or similar immigration issues, please contact an attorney at Stilwell & Slatton Immigration.