Yesterday U.S. District Judge Derrick K. Watson granted a motion to stay the implementation of a revised version of the administration's Muslim travel ban. As noted on this blog the revised ban was worded much more carefully and seemed to be designed to avoid court challenges and to provide just enough plausible deniability to allow the administration to enforce it without further court intervention. However this new language did not impress Judge Watson, a Federal District Court Judge in Hawaii, who ruled that the parties seeking to challenge the order as unconstitutional would have a "strong likelihood of success"
The opinion, which was a blistering 43 pages, placed special emphasis on the accusations of religious discrimination against the order. Watson declared that “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.”. The Judge was particularly harsh to the governments argument that by limiting the enforcement to only the six named countries precluded an inference of discrimination stating “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.”
This ruling prevents the current order from being enforced and seems to set the stage for a debate on the fundamental concept of the ban itself. The litigation on the prior order had mostly focused on the failures of the administration to follow basic administrative rule making procedures and being unconstitutionally vague. This current order seems to take aim at the goal of these travel bans itself, perhaps setting the state for a legal battle about whether the government can attempt to keep out entire classes of people from the United States.
We will be continuing to follow this case and will be providing additional updates as we become aware of new information.
