The ruling by a judge in Hawaii to freeze Donald Trump’s “Muslim Ban 2.0” nationwide exposes both the incompetence of the White House and how the inflammatory rhetoric by Trump and his underlings are blowing up in their face.
U.S. District Judge Derrick K. Watson issued a 43-page ruling on March 15 for a temporary restraining order on Trump’s executive order that aimed to block nationals from six Muslim-majority nations from traveling to the United States.
Watson excoriated the Trump administration’s defense as “fundamentally flawed” and marked by “illogic.” The judge wrote “a reasonable, objective observer … would conclude that the Executive Order was issued with a purpose to disfavor a particular religion,” namely, Islam.
The judge explained that meant the order violated the First Amendment’s “establishment clause,” which prevents the government from officially preferring one religious denomination over another.
Watson pointed out in formulating the ban, the Trump administration relied on data showing the six countries in question “have overwhelmingly Muslim populations that range from 90.7% to 99.8%.” The judge stated it was not a leap to conclude “that targeting these countries likewise targets Islam.”
The Trump administration sought to block visitors and immigrants from the affected nations for 90 days and suspend the entire U.S. refugee program for 120 days while it reviewed existing procedures, instituted new vetting policies, and required affected nations to hand over more information about their nationals seeking to enter the United States.
Trump claimed the order’s intent was to defend against the threat of terrorism, but the judge rejected this, stating there was a “dearth of evidence indicating a national security purpose.”
The White House had requested a Department of Homeland Security memo to prove nationals from seven countries were exceptional risks. The memo, however, was titled, “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States,” and found citizens from the nations were “rarely implicated in U.S.-based terrorism.”
Watson ruled statements by Trump and his advisers showed a different intent: to ban Muslims. And he said there was nothing “veiled” or “secret” in their motives. Watson quoted Trump saying, “I think Islam hates us,” “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,” and the judge mentioned a Trump campaign press release “calling for a total and complete shutdown of Muslims entering the United States.”
The judge concluded these statements indicated a “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”
Trump first introduced a seven-nation Muslim ban on January 27 with an order that sparked chaos and mass demonstrations at U.S. airports as hundreds of foreign visitors, including legal U.S. residents, were detained or deported and 60,000 visas cancelled. Within a week judges blocked most parts of that order as unconstitutional. The revised order dropped Iraq from the list of banned nations. The new order called for a “worldwide review” of U.S. immigration policies and new criteria on a nation-by-nation basis. Few, however, expected banned nations could satisfy Trump’s demands, particularly as policies could change at any time and governments would balk at sharing extensive personal information about their citizens to a hostile White House.
The fact countries could be dropped or added to the banned list was troubling. During the election campaign Trump called for racial profiling. His two executive orders, in effect, would have profiled entire countries. Being able to add or remove countries and change admissions criteria on spurious grounds would invite corruption as well. Countries not on the list include Saudi Arabia, Egypt, and the United Arab Emirates, where all but one of the September 11 hijackers originated. Additionally, Trump has holdings or business interests in these three nations and other Muslim-majority countries. Being able to add or remove countries to the banned list could be used as leverage in countries where Trump’s children pursue business deals.
Typical of its disorder, the Trump administration tripped itself up after the first order was blocked. Judge Watson noted that Senior White House adviser Stephen Miller said on February 21 there would be technical changes to the revised order, but, “Fundamentally, you’re still going to have the same basic policy outcome for the country.”
Watson’s ruling blocked Trump’s order hours before it was set to go into effect at 12:01 a.m. on Thursday, March 16.
Speaking to a crowd of supporters in Nashville shortly after the ruling, Trump slammed the restraining order as “an unprecedented judicial overreach.” He also called the revised order “watered down.”
These statements could come back to haunt Trump once more. Calling the new order watered down could be read as a discriminatory intent especially in light of his previous statements.
Additionally, Trump’s attacks on the judiciary are likely to figure into the upcoming nomination hearings for Neil Gorsuch whom Trump nominated to fill the open seat on the Supreme Court. After judges blocked parts of the first order and that ruling was upheld by Appeals Court judges, Trump lambasted the decision and judges as “ridiculous,” “disgraceful,” and “so-called judges.” Gorsuch now has to display independence while not angering Trump, a difficult line to walk in a hyper-partisan political atmosphere.
The case in Hawaii was only one of three court hearings held on the new order. The ruling against Trump was swift and broad, portending a difficult path forward if he tries to issue a new executive order. Judges in Seattle and Maryland are expected to issue rulings soon as well, and in a separate case in Wisconsin a week earlier, a District Court judge ruled against Trump’s revised order, but only in the case of one Syrian family trying to gain admission to the United States.
Nonetheless, Trump’s power over the huge federal bureaucracy enables him to lash out at citizens of the targeted countries and all refugees. He can order embassies and consulates to make the visa process more difficult for the six targeted nations; their nationals received some 63,000 visas in 2015. Numerous PhD students from Iran enrolled at U.S. universities but who went back home for a visit say they are unable to return to their institution as their visa applications have been in limbo for many months. Those denied U.S. visas have little recourse.
Trump also cut refuge admissions this year from 110,000 to 50,000, which he can do with no review. This means some 60,000 refugees planning on starting a new life in the United States after an arduous admissions process that can take two years may never be resettled. Annually only about one-half of one percent of refugees are resettled anywhere.
Even with two orders blocked, Trump has made border policies more draconian. PEN America, the writers and freedom of expression advocacy organization, reports that prominent artists and intellectuals have been detained and intimidated when trying to enter the United States after the first order was on hold. These include a best-selling children’s author from Australia, a French historian of the holocaust, and an American artist who was pulled aside and questioned about an art exhibit in Belgium in which he had participated.
By all accounts, Trump has “unshackled” immigration and border police. On February 22, passengers on a flight from San Francisco to New York claimed immigration agents forced them to show documents before being allowed to disembark, a questionable if not illegal procedure.
The new operating procedure at the U.S. border, reported the New York Times, is “Now they’re looking really hard for reasons to deny, instead of reasons to admit.”
Nonetheless, the worst aspects of Trump’s policies are on hold and the courts are unlikely to look favorably on what are naked attempts to enact immigration bans motivated by Islamophobia.
Arun Gupta contributes to The Washington Post, YES! Magazine, In These Times, The Progressive, Telesur English, and The Nation. He is author of the forthcoming, Bacon as a Weapon of Mass Destruction: A Junk-Food Loving Chef’s Inquiry into Taste, from The New Press.