Update on U.S. President Trump’s Travel Ban: Nationwide Temporary Restraining Order

Two key sections of the travel ban ­– the ban on entry for nationals of the six designated countries and the restrictions on refugees – will not take effect today.  On March 15, 2017, two federal judges issued nationwide temporary restraining orders to block the implementation of U.S. President Trump’s “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States” before it could come into effect today, March 16.[1]

The first nationwide temporary restraining order (TRO) was issued by United States District Judge Derrick K. Watson at the federal court in Honolulu, Hawaii, in the case State of Hawaii et al. v Trump et al.  The TRO covers not only Section 2 of the Executive Order, which contains the provisions enacting a temporary suspension of entry for nationals of six designated countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) but also covers Section 6, which includes limits on the U.S. Refugee Admissions Program for the fiscal year 2017.[2]  Judge Watson held that the Executive Order violates the religious establishment clause of the U.S. Constitution, and declared in strong language that “the illogic of the government’s contentions is palpable…It is a discriminatory purpose that matters, no matter how inefficient the execution.”[3]  His decision invoked President Trump’s public comments as evidence of discriminatory purpose.

President Trump’s reaction to the first TRO was to declare that Judge Watson had displayed “unprecedented judicial overreach,” and said that his administration would appeal the ruling to the United States Supreme Court because “[t]he need for my executive order is clear.”[4]

Several hours after Judge Watson issued his order for a TRO, United States District Judge Theodore D. Chuang issued a similar ruling in Maryland.  While he declined to block the entire Executive Order from going into effect, he ruled that Section 2, which aimed to suspend entry into the U.S. for nationals of the six designated countries, could not be enforced.[5]

Therefore for the moment, the travel ban sections barring entry for nationals of the six designated countries and limiting the number of refugees admitted into the United States for the fiscal year 2017 will not come into effect today. While the current TRO is, of course, temporary, it remains to be seen whether the full travel ban will come into effect at a later date.  Judge Watson has stated his intention to hold an expedited hearing to determine whether the nationwide TRO should be extended.[6]  It is therefore possible that if such an extension is granted, and if the legal challenges in Hawaii and Maryland are ultimately successful and upheld on appeal, the Travel Ban 2.0 – a source of unimaginable fear, worry, and anger for so many ­­- may be never take effect at all.

The full text of Judge Watson’s order issuing a nationwide Temporary Restraining Order is available online directly from the federal court in Hawaii: http://www.hid.uscourts.gov/files/announcement142/CV17-50%20219%20doc.pdf.

The full text of Judge Chuang’s memorandum opinion and order is available online directly from the federal court in Maryland: http://www.mdd.uscourts.gov/news/international-refugee-assistance-project-et-al-v-donald-j-trump-et-al-tdc-17-0361-2017-03

[1] Alexander Burns, “2 Federal Judges Rule Against Trump’s Latest Travel Ban,” New York Times, March 15, 2017, https://www.nytimes.com/2017/03/15/us/politics/trump-travel-ban.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=span-ab-top-region&region=top-news&WT.nav=top-news.

[2] American Immigration Lawyers Association (AILA), “Hawaii District Court Stops Implementation of March 6, 2017 Travel/Refugee Ban,” March 15, 2017, AILA Doc. No. 17020631,  http://www.aila.org/infonet/documents-relating-to-state-of-hawaiis-challenge.

[3] Timothy Hurley, “Trump vows to appeal travel ban ruling by federal judge in Hawaii,” Honolulu Star Advertiser, March 16, 2017, http://www.staradvertiser.com/2017/03/15/breaking-news/hawaii-in-federal-court-to-challenge-trumps-travel-ban/.

[4] Ibid.

[5] Supra, note 1.

[6] Supra, note 3.