The Trump administration has failed in its second try to ban travel to the U.S. by people from six majority Muslim countries.
The ban, which represented a do-over by the White House after its first attempt was blocked by the courts, likely violates the Constitution’s prohibition on government’s preferring one religion over another, the U.S. District Court in Honolulu ruled on Wednesday, a day before the ban was to take effect.
A “reasonable, objective observer – enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance – would conclude that the executive order was issued with a purpose to disfavor a particular religion,” Judge Derrick Watson wrote in a 43-page ruling that halts enforcement of the ban nationwide.
The lawsuit originated with Ismail Elshikh, Ph.D., a U.S. citizen and the Imam of the Muslim Association of Hawaii, who accuses the administration of violating the Establishment Clause of the First Amendment. In court papers, Dr. Elshikh cites a series of statements by the president, his staff and surrogates that the president set out to institute a ban on Muslims seeking entry to the U.S. Dr. Elshikh points to evidence that the travel ban is unlikely to strengthen national security.
The revised ban also contravenes the Fifth Amendment’s guarantee of due process, by preventing Dr. Elshikh’s mother-in-law, a citizen of Syria who last visited the U.S. in 2005, from obtaining a visa to visit her family in Hawaii. “Citizens may have a constitutionally protected interest in specific non-citizens’ ability to travel to the United States,” the plaintiffs write in court papers.
The State of Hawaii, the co-plaintiff in the lawsuit, alleges that the revised ban will impede its ability to recruit students and faculty from the affected countries, as well as depress travel to and tourism in the Aloha State.
President Trump called the ruling an “unprecedented judicial overreach” and vowed to appeal it to the Supreme Court. At least a dozen states have sued to block the revised travel ban.
Separately, a federal judge in Maryland ruled Thursday that enforcement of the revised travel ban would violate the Establishment Clause, citing statements by the president and administration officials.
Despite the White House’s revising its executive order with the aim of the ban’s passing constitutional muster, “the history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban,” Judge Theodore Chuang wrote.