In a motion filed Tuesday, Neal Katyal, a lead attorney on the lawsuit, argues that the state’s case has only grown stronger since Watson issued the temporary retraining order six days ago.
On Tuesday, the Hawaii Department of the Attorney General filed a motion asking the federal court in Honolulu to turn a temporary restraining order against the travel ban into a preliminary injunction.
Cory Lum/Civil Beat
Katyal points to Trump’s speech at a rally in Nashville, Tennessee, on Wednesday — held only hours after Watson’s ruling:
“The order (Watson) blocked was a watered-down version of the first order that was also blocked by another judge and should have never been blocked to start with. … Remember this. I wasn’t thrilled, but the lawyers all said, ‘Oh, let’s tailor it..’ This is a watered-down version of the first one. This is a watered-down version. And let me tell you something: I think we ought to go back to the first one and go all the way — which is what I wanted to do in the first place.”
“Any ‘reasonable, objective observer’ hearing or reading these remarks would conclude that the national security findings in the revised order were simply a smokescreen for the same plan of discrimination so readily apparent in the first draft,” Katyal wrote. “If plaintiffs’ likelihood of success was strong last week, it is only stronger today.”
Katyal argues that the same findings that prompted Watson to issue his initial ruling should be enough for a longer-lasting injunction, which will remain in place as Hawaii’s lawsuit winds through the court’s calendar.
“As this court explained, the standards for issuing a preliminary injunction and a (temporary restraining order) are ‘substantially identical,'” Katyal wrote. “Defendants can point to no changed circumstances in the last six days that would warrant revisiting this court’s thorough and well-reasoned opinion.”
In his ruling, Watson found “significant and unrebutted evidence of religious animus” behind the revised order — in violation of the First Amendment’s establishment clause, which prohibits the government from favoring one religion over another.
But Justice Department lawyers, who maintain that Trump was well within his “broad statutory authority” to issue the travel ban, have indicated that they will oppose the motion for a preliminary injunction on the basis that Watson’s ruling should be narrowed.
On Friday, the lawyers took their arguments to Watson, asking him to “clarify” that his ruling doesn’t apply to key parts of the revised order — one provision that suspends refugee resettlements, as well as several subsections of another provision that temporarily halts the issuance of new visas to citizens of six Muslim-majority countries.
Watson on Sunday rejected the lawyers’ arguments and gave them until Friday to respond to the state’s motion. Oral arguments will follow five days later.
Katyal argues that Watson needs “no further analysis” before issuing a preliminary injunction.
“The government’s only apparent argument to the contrary — that the injunction should be narrowed to some subset of sections 2 and 6 — has already been rejected by this court and is meritless in any event,” Katyal wrote.
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