By Kevin Daley
A federal judge in Hawaii has barred enforcement of President Donald Trump’s third wave of travel restrictions, which were promulgated after the 90-day ban on migrant travel from six countries with high instances of terror expired in September.
U.S. District Judge Derrick Watson of the District of Hawaii issued a temporary restraining order against the ban Tuesday, concluding the president’s directive violates federal law. A challenge to the new restrictions was brought by Hawaii Attorney General Doug Chin. Former Acting Solicitor General Neal Katyal, a former Obama administration official now in private practice in Washington, D.C., was the lead attorney for the challengers.
In #HawaiivsTrump we have just won. Nationwide injunction on travel ban 3. Opinion to follow.
— Neal Katyal (@neal_katyal) October 17, 2017
As in previous rulings, Watson said the government failed to show that nationality alone makes an individual a heightened security risk and that existing vetting mechanisms are insufficient for national security. Watson also objects to contradictions within the order, since several countries, like Iraq, fail to abide by articulated security criteria but are not subject to restrictions.
He also concluded the order’s nationality-based prohibition violate a federal law which forbids discrimination in the issuance of visas on the basis “of the person’s race, sex, nationality, place of birth, or place of residence.”
He also criticized the government’s argument that courts should not scrutinize the president’s national security judgements, writing that securing the homeland is not a “talismanic incantation” affording the administration plenary power.
“EO-3 suffers from precisely the same maladies as its predecessor,” Watson wrote. He did not address claims that the president’s order violates the Constitution.
His ruling relies in significant part on a June decision from the 9th U.S. Circuit Court of Appeals, which upheld a ruling blocking Trump’s second travel ban. The U.S. Supreme Court is likely to vacate this decision in the coming days.
Watson has previously enjoined earlier versions of Trump’s travel bans. Tuesday’s ruling applies against travel restrictions levied against Chad, Iran, Libya, Syria, Yemen, and Somalia. It does not apply against travel restrictions applied to North Korea and Venezuela.
Administration officials say the decision to restrict travel to the countries named in the order was the product of a deliberative and collaborative process involving U.S. security officials and foreign governments. All countries were informed of baseline security expectations by the administration in July. While the original travel ban was in place, an interagency task force identified some 15 countries who fail to comply with U.S. security requirements. After consultation with the relevant foreign governments, that list was reduced to eight states, several of whom were described as intentionally noncompliant.
The government will likely appeal the ruling, though it is unclear whether they will appeal to the 9th Circuit or the Supreme Court.
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