A federal judge in Hawaii issued a worldwide restraining order against enforcement of key parts of President Donald Trump’s revised travel ban executive order just hours before the directive was set to kick in, backed up by a second federal judge in Maryland who put out his own ruling blocking parts of the order.
U.S. District Court Judge Derrick Watson ruled Wednesday that the state of Hawaii and a local Muslim leader had “a strong likelihood of success on their claim” that Trump’s order intentionally targets Muslims and therefore violates the Constitution’s guarantee against establishment of religion.
The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise. See Aziz, 2017 WL 580855, at *9 (rejecting the argument that “the Court cannot infer an anti-Muslim animus because [Executive Order No. 13,769] does not affect all, or even most, Muslims,” because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution” (citation omitted)). Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the Government does, that it does not.
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A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor. For example—
In March 2016, Mr. Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, “Is there a war between the West and radical Islam, or between the West and Islam itself?” He replied: “It’s very hard to separate. Because you don’t know who’s who.”
SAC ¶ 41 (citing Anderson Cooper 360 Degrees: Exclusive Interview With Donald Trump (CNN television broadcast Mar. 9, 2016, 8:00 PM ET), transcript available at https://goo.gl/y7s2kQ)). In that same interview, Mr. Trump stated: “But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States. . . [a]nd of people that are not Muslim.”
At The New York Times, Michael Shear explains that Trump is digging himself a deeper hole:
“Let me tell you something,” Mr. Trump told his enthusiastic supporters, echoing the simpler days of the campaign, when courts did not get in the way. “I think we ought to go back to the first one and go all the way. The danger is clear, the law is clear, the need for my executive order is clear.”
And yet, even now, the president may not fully appreciate the power — and the implications — of his words.
At the rally, Mr. Trump offered more verbal ammunition to support the critiques of the travel ban. The president called his latest effort to restrict entry merely “a watered-down version” of his first attempt, which was also blocked by the courts.
Those words could easily serve to undermine his own lawyers, who have argued strenuously that Version 2.0 of the travel ban is different enough that it should pass legal muster.
In the near future, the president may find an appeals court judge once again citing his words in support of a ruling that he doesn’t like.
