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Hawaii Travel Ban Lawsuit Adds Religious Freedom Claim

Attorney General Doug Chin announced today that Hawaii federal judge Derrick K. Watson has partially lifted the stay he placed last week on Hawaii’s travel ban lawsuit. This action by Judge Watson allows Dr. Ismail Elshikh, a U.S. citizen and Hawaii resident, to join Hawaii’s case against the President’s Executive Order banning travel from seven Muslim-majority nations and suspending the nation’s refugee program.

Click to read lawsuit

Judge Watson also allowed Hawaii to add a new count, alleging violations of the federal Religious Freedom Restoration Act. The Act prohibits the federal government from substantially burdening the exercise of religion, even if the burden results from a rule of general applicability.

The stay Judge Watson issued last week remains in place for all other purposes, so long as the nationwide injunction against implementation of the President’s Executive Order, signed on January 27, 2017, remains in place. On Friday, February 10th, a 3-0 decision from the Ninth Circuit Court of Appeals allowed the nationwide injunction to remain in place.

Attorney General Chin added, “President Trump’s executive order imposes a substantial burden on the exercise of religion. Freedom of religion is one of the most important rights and values for citizens in this country, no matter what religion that is. The additional claim in our complaint protects that right.”

A copy of the first amended complaint in Hawaii v. Trump is attached.

HAWAII VS. PRESIDENT TRUMP

Hawaii Attorney General Doug Chin announced today that the state of Hawaii has filed a lawsuit against President Donald Trump in Hawaii federal court.

Click to read lawsuit

The lawsuit filed today asks the court to block implementation of the January 27, 2017 Executive Order signed by President Trump entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The Executive Order restricts immigration from seven Muslim-majority countries: Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen. It suspends all refugee admission for 120 days and bars all Syrian refugees indefinitely. It grants entry preferences to minority religions. This order is the beginning of the fulfillment of President Trump’s campaign pledge to implement a “total and complete shutdown of Muslims entering the United States.”

Attorney General Chin said, “What makes our country special and a beacon across the world is its inclusive democracy and the rule of law. Everyone in the United States, including the President, must follow the law and follow the Constitution.”

The complaint alleges several causes of action:

  • The Executive Order is unconstitutional because it favorsone religion over another in violation of the establishment clause of the First Amendment;
  • The Executive Order is unconstitutional because it denies equal protection of the law on the basis of national origin;
  • The Executive Order is unconstitutional because it curtails the right to travel without any legal justification;
  • The Executive Order is unconstitutional because it deprives individuals of their liberty interests without due process of law;
  • The Executive Order is illegal because it violates the Immigration and Nationality Act and the Administrative Procedures Act.

Hawaii’s papers filed today asked the court to block the order across the country. As the state’s memo argues:

Hawaii joins the many voices that have condemned the Order. But this pleading is not about politics or rhetoric—it is about the law. The simple fact is that the Order is unlawful. By banning Muslims and creating a preference for Christian refugees, the Order violates the Establishment Clause of the United States Constitution. By those same acts, it violates the equal protection guarantee of the Fifth Amendment. By failing utterly to provide procedures or protections of any kind for people detained or turned away at our airports, it violates the Due Process Clause. And by enshrining rank discrimination on the basis of nationality and religion, it flies in the face of statutes enacted by Congress.

Hawaii has asked for a hearing on its motion for a temporary restraining order in no more than 14 days.

Attorney General Chin added, “Hawaii is an island state. This illegal order affects our state in a unique way. Under this order, an Iraqi permanent resident on the mainland U.S. cannot leave the country without the risk of never being allowed to return, but he still can travel throughout the continental United States. That same person here cannot so much as visit another island within our state for fear of being detained by federal agents at the airport. In the past, the people of this state experienced discrimination by the federal government based on national origin. We must speak up and not let this happen again.”

Assisting the state of Hawaii in the litigation is Neal Kumar Katyal, Esq., former Acting Solicitor General of the United States during the Obama Administration. He is currently a partner at the Washington, D.C. law firm Hogan Lovells, and a law professor at Georgetown University.

Copies of the complaint, motion for a temporary restraining order, and memorandum in support of the motion for a temporary restraining order are attached.