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Hawaii Argues to U.S. Supreme Court that Trump Travel Ban is Unnecessary and Unlawful

Today, Hawaii filed a supplemental brief with the U.S. Supreme Court, in which it argues that a new memo issued by President Trump on June 14, 2017 has rendered his controversial travel ban and refugee ban both unnecessary and unlawful.

Click to read

On May 25, 2017, the Fourth Circuit Court of Appeals affirmed an injunction against the travel ban in International Refugee Assistance Project (IRAP) v. Trump. On June 1, 2017, the Trump Administration asked the United States Supreme Court to stay the Fourth Circuit injunction issued in IRAP v. Trump, grant discretionary review (called certiorari) in IRAP v. Trump, and stay the injunction issued by Hawaii federal district court Judge Derrick K. Watson in Hawaii v. Trump. On June 12, 2017, the Ninth Circuit Court of Appeals affirmed Judge Watson’s order on statutory grounds. The Ninth Circuit upheld the district court’s injunction blocking the travel ban and the refugee ban. The only portions of the district court’s injunction that were not upheld concerned internal studies undertaken by the Government and whether the President, rather than his cabinet members, should be named directly. Neither change reduces the effectiveness of the injunction against the travel and refugee bans.

Following the Ninth Circuit’s ruling, the Trump Administration asked the Supreme Court for supplemental briefing to address the Ninth Circuit’s decision. The Trump Administration filed its supplemental brief on June 15, 2017, requesting both a stay of the injunction pending appeal and that the Supreme Court grant certiorari in Hawaii v. Trump, alongside IRAP v. Trump.

Two days after the Ninth Circuit’s decision, on June 14, President Trump had issued a memorandum instructing agencies to begin internal vetting reviews within hours of the Ninth Circuit’s decision taking effect, and to put the travel and refugee bans into effect whenever the remaining injunctions are lifted. Yesterday Judge Watson ordered the injunction to be revised consistent with the Ninth Circuit opinion.

In today’s filing, Hawaii argues in part that since the alleged rationales for the bans were to allow the Government to conduct these internal vetting reviews, the new memo from the President makes clear that the Order’s travel and refugee restrictions are no longer required to accomplish what the Government intended. “The President’s memorandum also empties the present petition for certiorari of any compelling justification. The Government does not explain why this Court’s review would be warranted once the supposed purpose of the Order – the completion of the vetting upgrade – has lapsed, as it almost surely will have by the time this case is heard in October,” Hawaii asserts.

Hawaii’s supplemental brief also states:

“Two Courts of Appeals are now united in enjoining Executive Order No. 13,780—a policy that flouts the limits of Executive power, denigrates Muslim-Americans, and threatens the Nation’s reputation as a place of refuge for immigrants and refugees alike. … Both courts saw that rationale for the sham that it was, one that can neither mask the Order’s denigration of Muslims nor justify ignoring the immigration laws’ finely reticulated limits.”

A copy of Hawaii’s supplemental brief in opposition is attached.

Supplemental Addendum. 

Travel Ban Case Update: Hawaii Files Answering Brief with the Ninth Circuit Court Appeals

Last Friday afternoon the State of Hawaii filed its answering brief with the Ninth Circuit Court of Appeals in Hawaii v. Trump.

Click to read

On March 15, 2017, Judge Derrick Watson issued a 43-page opinion temporarily enjoining the federal government nationwide from enforcing or implementing Sections 2 and 6 of a second Executive Order issued by President Trump (the travel ban).

The travel ban would have restricted immigration from Iran, Syria, Somalia, Sudan, Libya, and Yemen, and also temporarily suspended refugee admissions. The travel ban had been scheduled to become effective on March 16, 2017.

The temporary restraining order blocking the travel ban was converted to a preliminary injunction on March 29, 2017. On April 7, 2017, the Department of Justice filed its opening brief seeking to overturn that preliminary injunction.

Hawaii’s answering brief states in part:

“The Executive Order flouts [the] protections [in the Constitution]. While the Constitution commits the immigration power to Congress, the President claims it for his own, recognizing no statutory limits on his powers of exclusion. And while the Bill of Rights guarantees Due Process and forbids the establishment of religion, the President seeks to enact a thinly veiled Muslim ban, shorn of procedural protections and premised on the belief that those who practice Islam are a danger to our country. The Constitution is not so easily cast aside.”

The Trump Administration is expected to file a reply brief on April 28, 2017. The appeal is scheduled to be heard before a panel of the Ninth Circuit Court of Appeals on May 15, 2017 at 9:30 a.m. in Seattle, Washington.

Hawaii Attorney General Questions President Trump in D.C. About Travel Ban

During a question and answer session at the White House today with President Donald Trump and state attorneys general from across the country, Hawaii Attorney General Doug Chin asked the President about the travel ban that prompted lawsuits across the country challenging the ban’s constitutionality, including one filed by Chin on behalf of the State of Hawaii on February 3, 2017.

Attorney General Chin told President Trump he understood a new executive order might be released this week relating to a ban on travel from seven Muslim-majority nations. Chin asked the President to explain the President’s thinking behind the executive order and what the President wanted to accomplish.

Attorney General Chin stated, “President Trump asked if my state had sued him and I said, ‘we did.’  The President then answered my question by saying that his goal was to make America safe again and extreme vetting was part of achieving that goal.”

Attorney General Chin added, “The security and safety of our nation is a universal goal. I firmly believe you don’t have to target people based on national origin or religion to get there – in fact, doing so harms our nation’s security. Our Constitution does not allow such discrimination. The State of Hawaii will review future executive orders from the federal government with this in mind and will sue if we have to.”

After the question and answer session, which Vice President Mike Pence and Chief of Staff Reince Priebus also attended, the Vice President spoke with Attorney General Chin and, according to Chin, told Chin that the administration cared about Hawaii’s concerns.

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.