Round Three – Hawaii District Court Issues TRO against Travel Ban

This Executive Order replaces the January 27, 2017 Executive Order. Both Executive Orders restrict the entry of foreign nationals from certain countries and refugees on a temporary basis.

The State of Hawaii and Ismail Elshikh, Ph.D. sought a nationwide TRO prohibiting the enforcement of Sections 2 (six country ban) and 6 (suspension of the U.S. Refugee Assistance Program) of the Executive Order. The Court found that the Plaintiffs met their burden by demonstrating a strong likelihood of success on the merits and granted the TRO. Specifically, the Court addressed (i) the Plaintiffs’ Establishment Clause claim, (ii) whether irreparable injury is likely to occur, and (iii) whether the balance of equities favors the Plaintiffs.

The Court addressed the three issues above in turn. First, on the issue of the Establishment Clause, the Court found that the six-country ban showed religious discrimination in violation of the Establishment Clause of the First Amendment. The government sought to demonstrate a lack of religious discrimination by stating that the six countries comprise of only 9% of the world’s Muslim population. However, the Court was not convinced – “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.” State of Hawaii and Ismail Elshikh v. Donald J. Trump, CV. No. 17-00050 DKW-KSC (D. Hawaii March 15, 2017). Second, since the Plaintiffs demonstrated a likelihood of success on the Establishment Clause claim, the Court found that irreparable harm may be presumed. Lastly, the Court considered the balance of equities and the public interest. In analyzing this last issue, the Court weighed the national security concerns against the constitutional injuries and found that the “balance of equities and public interests justify granting the [] TRO.” Id.

As of now, individuals from the six countries listed in the Executive Order are subject to the same immigration rules as individuals from any other nation. The U.S. Refugee Assistance Program will remain unaffected. However, other unchallenged portions of the Executive Order such as the suspension of the Visa Interview Waiver Program will take effect as scheduled.