“Fourth Branch”? Hawaii Wins Nationwide TRO against the President’s Revised Immigration Ban

Once again, a State AG lawsuit has put the brakes on the President’s immigration ban. This one comes from Hawaii. Last week, Hawaii challenged the new ban in district court and moved for a temporary restraining order. On Wednesday, March 15, the court granted the motion.[1]

Hawaii challenged the President’s first ban in early February. That one barred the entry of citizens of seven Muslim-majority countries—as well as all refugees, unless they were of “a minority religion.” But the suit was stayed when Washington and Minnesota won a nationwide temporary restraining order against the ban in a Washington district court.

The Government appealed that ruling and lost. So, the President rewrote the ban, keeping six of the seven original countries—all but Iraq—and dropping the “minority religion” provision.

When the new ban issued a week ago on Monday, Hawaii was quick on the draw. It filed an amended complaint the next day, becoming the first state to oppose it. Meanwhile, AGs from Massachusetts, New York, and Oregon teamed up with Washington and Minnesota to help in their efforts.

The Hawaii court pulled no punches. It went on for pages with quotes about a Muslim ban by the President and his surrogates. It found those statements to be “significant and unrebutted evidence of religious animus.” Because of them, it ruled that Hawaii would likely succeed on its Establishment Clause claim: that the ban officially—and unconstitutionally—disfavors Islam.

“The illogic of the Government’s contentions is palpable,” the court wrote. It rejected the assertion that the ban was not “religiously motivated” because “the six counties represent only a small fraction of the world’s 50 Muslim-majority nations”: “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once,” the court found, was “fundamentally flawed.”

Does this mean that there can never be a travel ban? No, said the court—even during the course of this litigation, the court noted, “context may change,” and it was “prepared to respond accordingly”: “Here, it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation.”

“It does seem that we are becoming, potentially, the fourth branch of government,” New Mexico’s AG has recently said.

[1] The next day, on March 16, three organizational and six individual plaintiffs won another temporary restraining order against the ban in the district court of Maryland. See here.

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