Published by The Lawfare Institute
in Cooperation With
In the latest development in the travel ban litigation saga, on October 17 Judge Derrick Watson of the federal district court in Hawaii issued an order granting plaintiffs’ motion for a temporary restraining order (TRO) in Hawaii v. Trump. This nationwide TRO prohibits the U.S. government from enforcing certain provisions of the third incarnation of the travel ban (EO-3). The court enjoined implementation and enforcement of Sections 2(a), (b), (c), (e), (g) and (h) of President Trump’s September 24 executive order—the sections that indefinitely ban immigration from Iran, Libya, Syria, Yemen, Somalia and Chad—before they were supposed to go into effect on October 18. The TRO does not extend to the provisions related to Venezuela and North Korea, nor does it affect the policies related to nonimmigrant visas.
If this seems like déjà vu, it’s because Judge Watson issued a nationwide TRO in March enjoining enforcement of certain sections of President Trump’s second immigration executive order (EO-2). A version of this order was appealed to the Supreme Court and was scheduled for oral argument this month but later removed from the docket after the temporary entry ban provision in EO-2 expired on September 24. While its partner case, IRAP v. Trump, was vacated and remanded for dismissal, Hawaii v. Trump concerns the EO-2 refugee ban that does not expire until later this month in addition to the termporary entry ban and is therefore still pending before the Court.
On October 10, the same day that the Supreme Court vacated IRAP, the original plaintiffs in Hawaii v. Trump and three additional plaintiffs filed a third amended complaint and motion for TRO in the U.S. District Court for the District of Hawaii, challenging the terms of EO-3. They asserted nine separate constitutional and statutory causes of action and asked the court to enjoin the six sections of the EO described above.
In his order granting the motion, Judge Watson assesses that all plaintiffs satisfy standing requirements, that their claims are justiciable, and that they have satisfied the requirements for the issuance of a TRO. He reaches these conclusions solely based on the plaintiffs’ causes of action under the Immigration and Nationality Act (INA), finding it unnecessary to reach constitutional questions. Per Judge Watson, a TRO should be issued on this motion based on substantially the same reasoning as that which justified the previous TRO:
EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States,’ a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f) [of the INA].
In the first section of the order, Judge Watson evaluates the plaintiffs’ standing and justiciability of their claims. First, he concludes that each plaintiff satisfies Article III standing requirements—which is to say, that each has suffered a concrete, particularized, actual or imminent injury, that the injury can be traced to the challenged action of the defendant, and that the injury is likely redressable by a favorable outcome in the litigation.
Citing the Ninth Circuit’s opinion in this case and another Ninth Circuit travel ban opinion, Washington v. Trump, the court holds that Hawaii has standing based on harms to its proprietary interests as the operator of the University of Hawaii system, which receives students and applicants from EO-3 affected countries. Therefore, he does not reach the question of whether the state could have standing as parens patriae, or standing on behalf of its people. The three individual plaintiffs allege standing based on injuries suffered because relatives in affected countries are unable to visit: for the first, his Syrian brothers-in-law; for the second, his Yemeni son-in-law; and for the third, his Iranian relatives, including his mother. Finally, Judge Watson evaluates the standing claims of the third new plaintiff: the Muslim Association of Hawaii. Noting that associations face the same standing requirements as individuals, the court determines that the harm of declining membership imposed on the organization by EO-3 is a sufficient injury in fact.
The plaintiffs also meet the “zone of interest” test—their claims have stakes that “fall within the zone of interests protected by the law invoked,” in this case, the INA. The court explains that the INA was passed, in part, to support the preservation of family units, and thus the individual claims that plaintiffs are prevented from reuniting with family fall squarely within the INA’s zone of interest. Similarly, the INA is expressly concerned with providing visas to students and teachers, so Hawaii’s claims are also within the zone. The argument for the Muslim Association of Hawaii is somewhat harder, but Judge Watson assesses that they are “at least arguably within the zone of interests that the INA protects,” as they also seek to prevent harm suffered by members who cannot receive visits from family.
The government’s arguments that these claims are neither ripe nor justiciable do not seem to trouble the court. On ripeness, Judge Watson indicates that the plaintiffs’ injuries are sufficiently current, and notes that the Ninth Circuit did not require the plaintiffs in the earlier Hawaii v. Trump litigation to wait until they had “identif[ied] a visa applicant who was denied a discretionary waiver.” The court also sees itself bound by Ninth Circuit precedent on the issue of justiciability of these types of claims, quoting the earlier case at length:
Although ‘[t]he Executive has broad discretion over the admission and exclusion of aliens,  that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations. It is the duty of the courts, in cases property before them, to say where those statutory and constitutional boundaries lie.’
Having disposed of these initial issues, the court turns to the question of whether the plaintiffs have met the requirements for the issuance of a TRO: likelihood of success on the merits; likelihood of irreparable harm in the absence of preliminary relief; the weight of the balance of equities; and public interest.
First, Judge Watson analyzes the likelihood of success on the merits of the two INA claims. Plaintiffs allege that President Trump did not meet a threshold requirement to issue an executive order under INA Sections 1182(f) and 1185(a) because he did not make sufficient findings that “the entry of a class of aliens into the United States would be detrimental to the interests of the United States” to justify the policy. Judge Watson agrees, outlining three reasons why the findings in EO-3 are insufficient. First, EO-3 does not include a finding that nationality itself is a risk factor. In the court’s view, EO-3 is thus both overbroad and underinclusive—it includes nationals that are in no way connected to terrorist groups or contributing to insecurity in their country of origin, and excludes nationals of other countries who may have such ties. Second, there is no finding that the existing individual vetting process for issuance of visas is insufficiently protective of security. And third, there is no explanation for the inclusion or exclusion of the countries affected by EO-3, nor for the decisions regarding particular classes of visas that are prohibited or permitted by country of origin. For these reasons, the court concludes that the plaintiffs’ have demonstrated a likelihood of success on their claim that EO-3 exceeded the president’s authority under Sections 1182(f) and 1185(a).
Judge Watson reaches the same conclusion with respect to the claim that EO-3 violates Section 1152(a)(1)(A) of the INA, which prohibits nationality-based discrimination in the issuance of immigrant visas. The government did not argue that the EO was non-discriminatory on the basis of nationality; instead, it maintained that this section of the INA does not apply to the president’s authority under Sections 1182(f) and 1185(a). However, the court considers this argument foreclosed by the Ninth Circuit’s earlier opinion in this case, which explicitly stated that “§ 1152(a)(1)(A)’s non-discrimination mandate cabins the President’s authority under § 1182(f) [based on several] canons of statutory construction.”
Moving on to the second factor, the court quickly determines that many of the harms alleged by the plaintiffs are irreparable, include “prolonged separation from family members, constraints to recruiting and retaining students and faculty members to foster diversity and quality within the University community, and diminished membership of the [Muslim Association of Hawaii], which impacts the vibrancy of its religious practices and instills fear among its members.”
Lastly, the court analyzes the third and fourth requirements together. Though national security and border protection are “unquestionably...of significant public interest,” nevertheless, “they cannot justify the public’s harms when the President has wielded his authority unlawfully,” as Judge Watson appraises that he has done here. On the other side of the balance is the public interest in the “free flow of travel, in avoiding separation of families, and in freedom from discrimination,” in addition to “curtailing unlawful executive action.” This final factor met, Judge Watson conlcudes that the issuance of a TRO enjoining sections of EO-3 is appropriate here.
Possibility for Appeal
Because TROs are, by definition, temporary measures that do not last longer than ten days, they are generally not appealable. In the order, Judge Watson expresses his intention to set an expedited briefing schedule on the question of whether an extension of the TRO is warranted. Alternatively, if both parties consent to the conversion of the TRO into a preliminary injunction, it will not expire and the government could appeal to the Ninth Circuit without additional briefing or hearings at the district court level.