Battle Lines Drawn In The Case Of Hawaii Vs. Trump

Responding to the state’s challenge of the new travel ban, the administration argues it has the authority and Hawaii can prove no harm.

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By Rui Kaneya

The Trump administration on Monday asked the U.S. District Court in Honolulu to deny Hawaii’s request for an immediate injunction against the newly revised travel ban, arguing that the state “lacks any actual or imminent concrete injury” on which to base its challenge.

In a 68-page motion, Justice Department lawyers maintain that President Donald Trump enjoys “broad statutory authority” — bestowed by Congress — to “suspend the entry of any aliens or of any class of aliens,” making the travel ban well within his powers.

“Plaintiffs do not — and cannot — deny that the order falls comfortably within the plain terms of those express grants of authority,” the lawyers wrote.

On Wednesday, Hawaii became the first state to mount a legal challenge against Trump’s new executive order — which suspends refugee resettlements and temporarily halts the issuance of new visas to citizens of six Muslim-majority countries — arguing that the travel ban would “immediately threaten grave harm” to the state.

Hawaii Attorney General Doug Chin is basing the challenge on a number of constitutional grounds: the First Amendment’s establishment clause, which prohibits the government from favoring one religion over another, as well as the Fifth Amendment’s equal protection and due process guarantees.

Chin also alleges that the new order violates the Administrative Procedures Act, the Immigration and Nationality Act and the Religious Freedom Restoration Act.

A number of other states are leveling similar arguments to challenge the travel ban, which is set to take effect Thursday.

On Monday, Washington state, along with six other states, filed a motion asking a federal judge in Seattle to rule that his earlier temporary restraining order that halted Trump’s original travel ban also covers the new order.

In another challenge brought by refugee aid groups, a federal judge in Maryland set oral arguments for Wednesday morning — six hours before U.S. District Court Judge Derrick Watson in Honolulu holds a hearing on Hawaii’s lawsuit.

Harm To Tourism ‘Mere Speculation’

In arguing for a temporary restraining order, Chin claims that the travel ban will have “profound effects” on Hawaii by damaging its tourism industry — the state’s “lead economic driver” — as well as disrupting the University of Hawaii’s recruitment of students and faculty members.

Chin also calls attention to the plight of state residents — such as Ismail Elshikh, a naturalized U.S. citizen who is the imam of the Muslim Association of Hawaii.

According to the lawsuit, Elshikh, who joined Hawaii’s lawsuit as a co-plaintiff in February, has a mother-in-law whose visa application is still pending, and he fears that she will be denied entry to the United States.

But the Justice Department lawyers point to a host of revisions in the new order, which exempts permanent legal residents, as well as those who already hold valid U.S. visas, and no longer gives preferential treatment to the refugee claims of religious minorities.

The new order’s narrowed scope and “robust waiver provisions,” the lawyers argue, fully address the potential constitutional concerns identified by the 9th U.S. Circuit Court of Appeals, which upheld the nationwide injunction issued in Seattle.

“Plaintiffs therefore are not entitled to the sweeping relief they seek,” the lawyers wrote.

The lawyers also argue that the alleged harm to Hawaii’s tourism industry is “mere speculation,” noting that the state’s “only support for anticipating reduced tourism” is the drop in the number of visitors from Middle Eastern countries in January.

The original travel ban “was in effect only four days in that month,” the Justice Department lawyers wrote. “Hawaii also offers nothing to show that the new order — much narrower in its scope — will have the same effect. To the contrary, its own evidence refers only to the ‘potential’ for ‘further uncertainty’ — undermining any claim of concrete, imminent injury.”

And Elshikh’s claim is “not yet ripe,” the lawyers argue, given that his mother-in-law has yet to be denied a waiver under the new order.

“Until that happens, neither she nor Elshikh has suffered any injury fairly traceable to the order,” the lawyers wrote.

Sessions And Kelly Sought Ban

To get a temporary restraining order, Chin will have to convince Watson that the state’s arguments against the new order are “likely to succeed on the merits.”

In their motion, the Justice Department lawyers deny the state’s central argument — that the travel ban discriminates based on religion and national origin.

Instead, the lawyers cite national security concerns as the justification for the travel ban. To support their argument, they attached a two-page letter, signed March 6 by Homeland Security Secretary John Kelly and Attorney General Jeff Sessions, that asked Trump for a “temporary pause” on travel from certain countries.

“The order’s objective is to prevent future terrorist attacks before they occur.” — Justice Department lawyers

And the lawyers dismiss Chin’s attempt to use past statements by Trump and his aides to establish “discriminatory intent,” saying: “The order’s objective is to prevent future terrorist attacks before they occur. And that is precisely why the order focuses on six countries that Congress and the prior Administration recently determined pose the greatest risk of terrorist infiltration in the future.”

Despite such arguments, the Trump administration suffered its first legal setback of Round 2 over the weekend: In a limited ruling, a federal judge in Wisconsin blocked the travel ban to allow one Syrian refugee to reunite with his wife and 3-year-old daughter, who are still in war-torn Aleppo.

U.S. District Court Judge William Conley ruled that the man had “some likelihood of success on the merits,” and that the threats to his family could cause “irreparable harm” before issuing a temporary restraining order, which applies only to this particular case.

“The court appreciates that there may be important differences between the original executive order, and the revised executive order issued on March 6, 2017 — for example, the government points to a new waiver provision,” Conley wrote. “As the order applies to the plaintiff here, however, the court finds his claims have at least some chance of prevailing for the reasons articulated by other courts.”

You can read the Trump administration motion here:

Hawaii vs. Trump motion againt TRO from Civil Beat