The federal court has granted an emergency motion to put on hold Hawaii’s lawsuit against the Trump administration, a decision that will remain in place as long as a nationwide stay on President Donald Trump’s travel ban is in effect.
The decision, issued Tuesday by U.S. District Court Judge Derrick Watson, came just a few hours before the 9th U.S. Circuit Court of Appeals heard oral arguments over whether Trump’s executive order should be reinstated.
Issued Jan. 27, Trump’s order suspended refugee resettlements and temporarily barred citizens of seven Muslim-majority countries from entering the United States.
But, acting on a request from Washington and Minnesota, U.S. District Court Judge James Robart issued a temporary restraining order on Friday to block key parts of Trump’s order, allowing those who had been barred from entry to come to the U.S.
Robart’s decision set up a high-stakes legal battle between the Trump administration and the judicial branch that’s now playing out in the 9th Circuit.
Hawaii, meanwhile, filed its own lawsuit against Trump’s order on the same day of Robart’s decision, arguing that it amounted to a violation of a number of constitutional principles, as well as federal statues on immigration and administrative rules.
Watson, however, took Hawaii’s lawsuit off the calendar on Tuesday, apparently going along with the Trump administration’s argument that Robart’s decision had “already provided all the relief the state of Hawaii is seeking.”
But Watson’s stay on Hawaii’s lawsuit will be lifted if Robart’s temporary restraining order gets overturned, or scaled back, on appeal.
In Tuesday’s hearing in the 9th Circuit, a panel of three judges — including Judge Richard Clifton, who is based in Honolulu — weighed the fate of Robart’s temporary restraining order, three days after they denied the Trump administration’s emergency motion to restore the travel ban.
At issue were the key questions: Was Robart within his authority to place the limits on Trump’s order, and did Washington and Minnesota have legal standing to file the lawsuit in the first place?
Justice Department lawyer August Flentje argued that Trump’s order was well within the legal authority of the president, who enjoys a wide latitude under a federal statute to deny entry to noncitizens whose presence would be “detrimental to the interests of the United States.”
But Washington Solicitor General Noah Purcell argued that the judicial branch’s constitutional role is to be a check on the executive branch, and Flentje is asking it “to abdicate that role here to reinstate the executive order without meaningful judicial review and to throw this country back into chaos.”
The judges also appeared skeptical of Flentje’s argument.
Judge Michelle Friedland pointedly asked: “Are you arguing, then, that the president’s decision in that regard is unreviewable” by the courts?
After a pause, Flentje replied, “Yes,” and then added: “There are obviously constitutional limitations.”
Purcell, meanwhile, parried a number of tough questions from Clifton, who appeared unconvinced by the states’ argument that Trump’s order violated the First Amendment, which prohibits the government from favoring one religion over another.
Pointing out that only a small fraction of the world’s Muslims population was affected by the order, Clifton asked how that could be construed as discrimination against Muslims.
“I have trouble understanding where we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected,” Clifton said.
The judges did not immediately rule on the Trump administration’s motion, but Friedland said they would act “as soon as possible.”
Whatever the outcome, the decision is widely expected to be appealed to the U.S. Supreme Court.
Following Watson’s decision on Tuesday, Hawaii Attorney General Doug Chin told reporters that Hawaii’s “unique circumstances” — such as its reliance on tourism and geography — still warranted the state to pursue its own lawsuit.
“Traveling from here to the mainland or traveling from an island to an island invariably involves getting past TSA and having to go through a federal official. Which is different here than in Washington or Minnesota, or any of the other states where people can travel from state to state,” Chin said. “What we have that’s occurring because of this executive order is that people are essentially confined to this island.”
Chin also dismissed criticisms that the resources being used in the lawsuit should be directed elsewhere.
“I want to assure people that the 175 attorneys that are in our office are taking care of the legislative season, and they’re taking care of the different state issues that are out right now. I feel very comfortable with that,” Chin said.
“As far as whether this is a best use of our money, I feel very strongly that this is something that needs to be a priority,” Chin said. “We’re talking about an executive order that is discriminating against people based on their national origin. … I think people here in Hawaii, more than any other state, can understand why this is important.”