Order granting HI's motion for TRO challenging Trump's travel ban EO 13,780
Highlights of the Order granting State of Hawaii's motion for Temporary Restraining Order challenging Trump's travel ban Executive Order [No. 13,780] titled "Protecting the Nation from Foreign Terrorist Entry into the United States. HI's motion for TRO was granted by the Hawaii District Court Judge Derrick K. Watson on March 15, 2017
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Timeline of filing motions by HI and WA seeking Temporary Restraining Orders to challenge Trump's two travel ban Executive Orders
The first travel ban EO [No. 13,769 ] is signed by Trump.
Washington State files a motion for a TRO, seeking to halt the implementation of the first EO.
Hawaii State files initial motion for TRO, seeking to halt the implementation of the first EO.
Washington State enjoins the Government from enforcing the first EO
Trump's Emergency Motion to stay Washington's TRO is denied by the Ninth Circuit Court.
The second travel ban EO [No. 13,780] is signed by Trump. Hawaii State files a second motion for TRO seeking to halt the implementation of the second EO.
Order granting State of Hawaii's motion for Temporary Restraining Order is signed by Hawaii District Court Judge Derrick Watson.
on Administrative Procedure Act (APA) : (7) substantive violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A)-(C), through violations of the Constitution, INA, and RFRA ( Count VII ); (Mar 15, 2017)
on adversary context : Article III, Section 2 of the Constitution permits federal courts to consider only "cases and controversies." Massachusetts v. EPA, 549 U.S. 497, 516 (2007). "Those two words confine 'the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" Id. ( quoting Flast v. Cohen, 392 U.S. 83, 95 (1968) ). (Mar 15, 2017)
on adverseness : "The standing question, in plain English, is whether adherents to a religion have standing to challenge an official condemnation by their government of their religious views[.] Their 'personal stake' assures the 'concrete adverseness' required." Catholic League, 624 F.3d at 1048-49. In Establishment Clause cases-- (Mar 15, 2017)
on animus toward a group of people : The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. (Mar 15, 2017)
on Article III, Section 2 : Article III, Section 2 of the Constitution permits federal courts to consider only "cases and controversies." Massachusetts v. EPA, 549 U.S. 497, 516 (2007). "Those two words confine 'the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" Id. ( quoting Flast v. Cohen, 392 U.S. 83, 95 (1968) ). (Mar 15, 2017)
on Article III standing requirements : "At this very preliminary stage of the litigation, the [Plaintiffs] may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden." Washington, 847 F.3d at 1159 ( citing Lujan, 504 U.S. at 561 ). "With these allegations and evidence, the [Plaintiffs] must make a 'clear showing of each element of standing.'" Id. ( quoting Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013), cert. denied, 134 S. Ct. 907 (2014) ). At this preliminary stage of the proceedings, on the record presented, Plaintiffs meet the threshold Article III standing requirements. (Mar 15, 2017}
on balance of equities : A "plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council,Inc., 555 U.S. 7, 20 (2008) ( citation omitted ) (Mar 15, 2017)
on balance of equities : The final step in determining whether to grant the Plaintiffs' Motion for TRO is to assess the balance of equities and examine the general public interests that will be affected. (Mar 15, 2017)
on bona fide reason : The Government compounds these shortcomings by suggesting that the Execurtive Order's neutral text is what this Court must rely on to evaluate purpose. Govt. Mem. in Opp'n at 42-43 ( "[C]ourts may not 'look behind the exercise of [Executive] discretion' taken 'on the basis of a facially legitimate and bona fide reason.'" ). Only a few weeks ago, the Ninth Circuit commanded otherwise: "It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims." Washington, 847 F.3d at 1167-68 ( citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) ( Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality." ); Larson, 456 U.S. at 254-55 ( holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions ); (Mar 15, 2017)
on capable of resolution : Article III, Section 2 of the Constitution permits federal courts to consider only "cases and controversies." Massachusetts v. EPA, 549 U.S. 497, 516 (2007). "Those two words confine 'the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" Id. ( quoting Flast v. Cohen, 392 U.S. 83, 95 (1968) ). (Mar 15, 2017
on causation and redressability : The final two aspects of Article III standing -- causation and redressability -- are also satisfied. Dr. Elshikh's injuries are traceable to the new Executive Order and, if Plaintiffs prevail, a decision enjoining portions of the Executive Order would redress that injury. See Catholic League, 624 F.3d at 1053. (Mar 15, 2017)
on CAUSES OF ACTION:
(1) violation of the Establishment Clause of the First Amendment ( Count I )
(2) violation of the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion, national origin, nationality, or alienage ( Count II )
(3) violation of the Due Process Clause of the Fifth Amendment based upon substantive due process rights ( Count III )
(4) violation of the procedural due process guarantees of the Fifth Amendment ( Count IV )
(5) violation of the INA due to discrimination on the basis of nationality, and exceeding the President’s authority under Sections 1182(f) and 1185(a) ( Count V )
(6) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 200bb-1(a) ( Count VI )
(7) substantive violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A)-(C), through violations of the Constitution, INA, and RFRA ( Count VII )
(8) procedural violation of the APA, 5 U.S.C. § 706 (2)(D) ( Count VIII )
on concrete adverseness : "At bottom, 'the gist of the question of standing' is whether petitioners have 'such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.'" Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) ( en banc ) ( quoting Massachusetts, 549 U.S. at 517)). (Mar 15, 2017)
on concrete and immediate injury : Tourism accounted for $15 billion in spending in 2015, 21 and a decline in tourism has a direct effect on the State's revenue. See SAC ¶ 18. Because there is preliminary evidence that losses of current and future revenue are traceable to the Execurtive Order, this injury to the State's proprietary interest also appears sufficient to confer standing. Cf. Texas v. United States, 809 F.3d 134, 155-56 (5th Cir. 2015), aff'd by an equally divided Court, 136 S. Ct. 2271 ( 2016 ) ( holding that the "financial loss[es]" that Texas would bear, due to having to grant drivers licenses, constituted a concrete and immediate injury for standing purposes ). (Mar 15, 2017)
on constitutional injuries and harms : When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government's national security motivations, the balance of equities and public interests justify granting the Plaintiffs' TRO. See Aziz, 2017 WL 580855, at *10. Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim. (Mar 15, 2017)
on direct, cocrete injuries : The Government's premise is not true. Dr. Elshikh alleges direct, cocrete injuries to both himself and his immediate family that are independent of his mother-in-law's visa status. See, e.g., SAC ¶¶ 88-90; Elshikh Decl. ¶¶ 1, 3. ( footnote 10 ) (Mar 15, 2017)
on discrimination and marginalization : The State's parens patriae theory focuses on the Execurtive Order subject[ing] citizens of Hawaii like Dr. Elshikh to discrimination and marginalization while denying all residents of the State the benefits of a pluralistic and inclusive society. Hawaii has a quasi-sovereign interest in 'securing [its] residents from the harmful effects of discrimination.' Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 609 (1982). The [Executive] (Mar 15, 2017)
on Due Process Clause : (2) violation of the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion, national origin, nationality, or alienage ( Count II ); (Mar 15, 2017)
on Due Process Clause : (3) violation of the Due Process Clause of the Fifth Amendment based upon substantive due process rights ( Count III ); (Mar 15, 2017)
on endorsement of religion : footnote 17. The Tenth Circuit asked: "What would be enough to meet this standard? " The case law does not yield a ready answer. But from the above principles we conclude that a government cure should be (1) purposeful, (2) public, and (3) at least as persuasive as the initial endorsement of religion. It should be purposeful enough for an objective observer to know, unequivocally, that the government does not endorse religion. It should be public enough so that people need not burrow into a difficult-to-access legislative record for evidence to assure themselves that the government is not endorsing a religious view. And it should be persuasive enough to countermand the preexisting message of religious endorsement. Felix, 841 F.3d 863-64. (Mar 15, 2017)
on enjoining the Government from enforcing the provisions of the EO : This Court did not rule on the State's initial TRO motion because later that same day, the United States District Court for the Western District of Washington entered a nationwide preliminary injunction enjoining the Government from enforcing the same provisions of Executive Order No. 13,769 targeted by the State here. See Washington v. Trump, 2017 WL 462040. (Mar 15, 2017)
on entanglement with religion : According to Lemon, government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion. Id. (Mar 15, 2017)
on equities : Upon evaluation of the parties' submissions, and following a hearing on March 15,2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. (Mar 15, 2017)
on Establishment and Equal Protection Clause claims. : The Government compounds these shortcomings by suggesting that the Execurtive Order's neutral text is what this Court must rely on to evaluate purpose. Govt. Mem. in Opp'n at 42-43 ( "[C]ourts may not 'look behind the exercise of [Executive] discretion' taken 'on the basis of a facially legitimate and bona fide reason.'" ). Only a few weeks ago, the Ninth Circuit commanded otherwise: "It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims." Washington, 847 F.3d at 1167-68 ( citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) ( Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality." ); Larson, 456 U.S. at 254-55 ( holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions ); (Mar 15, 2017)
on Establishment Clause : The Court turns to whether Plaintiffs sufficiently establish a likelihood of success on the merits of their Count I claim that the Execurtive Order violates the Establishment Clause of the First Amendment. Because 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 Execurtive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim. ( footnote 11 ) (Mar 15, 2017)
on Establishment Clause : "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). (Mar 15, 2017)
on Establishment Clause analysis : The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise. See Aziz, 2017 WL 580855, at *9 ( rejecting the argument that "the Court cannot infer an anti-Muslim animus because [Executive Order No. 13,769] does not affect all, or even most, Muslims," because "the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution" ( citation omitted )). (Mar 15, 2017)
on Establishment Clause cases : Courts observe that the injury-in-fact prerequisite can be "particularly elusive" in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest. Despite that, a plaintiff may nonetheless show an injury that is sufficiently concrete, particularized, and actual to confer standing. See Catholic League, 624 F.3d at 1048-49; Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1250 (9th Cir. 2007) ( "The concept of a "concrete injury" is particularly elusive in the Establishment Clause context." ). (Mar 15, 2017)
on Establishment Clause claims : footnote 9 To the extent the Government argues that the State does not have standing to bring an Establishment Clause violation on its own behalf, the Court does not reach this argument. Cf. Washington, 847 F.3d at 1160 n.4 ( "The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. (Mar 15, 2017)
on Establishment Clause rights. : footnote 9 To the extent the Government argues that the State does not have standing to bring an Establishment Clause violation on its own behalf, the Court does not reach this argument. Cf. Washington, 847 F.3d at 1160 n.4 ( "The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. (Mar 15, 2017)
on Executive Order, No. 13,780 : On March 6, 2017, the President issued another Executive Order, No. 13,780, identically entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." ( the "Executive Order" ). See 82 Fed. Reg. 13209 ( March 6, 2017 ). (Mar 15, 2017)
on Executive Order No. 13,769 entitled, : On January 27, 2017, the President of the United States issued Executive Order No. 13,769 entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." See 82 Fed. Reg. 8977 (Jan. 27, 2017). (Mar 15, 2017)
on Franklin Roosevelt : And then if you look at Franklin Roosevelt, a respected president, highly respected. Take a look at Presidential proclamations back a long time ago, 2525, 2526, and 2527 what he was doing with Germans, Italians, and Japanese because he had to do it. Because look we are at war with radical Islam." ) ( quoting Michael Barbaro and Alan Rappeport, In Testy Exchange, Donald Trump Interrupts and 'Morning Joe' Cuts to Commercial, New York Times (Dec. 8, 2015 ), available at https://www.nytimes.com/politics/first-draft/2015/12/08/in-testy-exchange-donaldtrump-interrupts-and-morning-joe-cuts-to-commercial/ )); Br. of Muslim Advocates et al. as Amici Curiae in Supp. of Pls.' Mot. for TRO, ECF No. 198, at 10-11 ( "On June 13, 2016, after the attack on a nightclub in Orlando, Florida, Mr. Trump said in a speech: 'I called for a ban after San Bernardino, and was met with great scorn and anger, but now many are saying I was right to do so.' Mr. Trump then specified that the Muslim ban would be 'temporary,' 'and apply to certain 'areas of the world when [sic] there is a proven history of terrorism against the United States, Europe or our allies, until we understand how to end these threats.'" ) ( quoting Transcript: Donald Trump's national security speech, available at http://www.politico.com/story/2016/06/transcript-donald-trump-national-security-speech-22427 ). (Mar 15, 2017)
on general public interests : The final step in determining whether to grant the Plaintiffs' Motion for TRO is to assess the balance of equities and examine the general public interests that will be affected. (Mar 15, 2017)
on INA : (7) substantive violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A)-(C), through violations of the Constitution, INA, and RFRA ( Count VII ); (Mar 15, 2017)
on INA-based statutory claims : footnote 11 The Court expresses no views on Plaintiffs' due-process or INA-based statutory claims. (Mar 15, 2017)
on injury of the institutions : The State purports that the Executive Order has injured its institutions, economy, and sovereign interest in maintaining the separation between church and state. SAC ¶¶ 4-5. (Mar 15, 2017)
on injuries : The State alleges standing based both upon injuries to its proprietary interests and to its quasi-sovereign interests, i.e., in its role as parens patriae. ( footnote 7 ) Just as the Ninth Circuit panel in Washington concluded on a similar record that the alleged harms to the states' proprietary interests as operators of their public universities were sufficient to support standing, the Court concludes likewise here. The Court does not reach the State's alternative standing theory based on the protection of the interests of its citizens as parens patriae. See Washington, 847 F.3d at 1168 n.5 ( "The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States' proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments." ). (Mar 15, 2017)
on injuries : These injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context. (Mar 15, 2017)
on injury-in-fact : Courts observe that the injury-in-fact prerequisite can be "particularly elusive" in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest. Despite that, a plaintiff may nonetheless show an injury that is sufficiently concrete, particularized, and actual to confer standing. See Catholic League, 624 F.3d at 1048-49; Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1250 (9th Cir. 2007) ( "The concept of a "concrete injury" is particularly elusive in the Establishment Clause context." ). (Mar 15, 2017)
on injury-in-fact : None of these propositions, however, alter the Court's finding that Dr. Elshikh has sufficiently established, at this preliminary stage, that he has suffered an injury-in-fact separate and apart from his mother-in-law that is sufficiently concrete, particularized, and actual to confer standing. (Mar 15, 2017)
on injury : Plaintiffs contend that these alleged violations of law have caused and continue to cause them irreparable injury. (Mar 15, 2017)
on injury : The final two aspects of Article III standing -- causation and redressability -- are also satisfied. Dr. Elshikh's injuries are traceable to the new Executive Order and, if Plaintiffs prevail, a decision enjoining portions of the Executive Order would redress that injury. See Catholic League, 624 F.3d at 1053. (Mar 15, 2017)
on injury : (2) the injury is fairly traceable to the challenged action of the defendant; and (Mar 15, 2017)
on injury in fact : (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (Mar 15, 2017)
on irreparable harm : A "plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council,Inc., 555 U.S. 7, 20 (2008) ( citation omitted ) (Mar 15, 2017)
on irreparable injury : Upon evaluation of the parties' submissions, and following a hearing on March 15,2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. (Mar 15, 2017)
on irreparable injury : Because Dr. Elshikh is likely to succeed on the merits of his Establishment Clause claim, the Court finds that the second factor of the Winter test is satisfied--that Dr. Elshikh is likely to suffer irreparable injury in the absence of a TRO. (Mar 15, 2017)
on irreparable injury : Dr. Elshikh has made a preliminary showing of direct, concrete injuries to the exercise of his Establishment Clause rights. See, e.g., SAC ¶¶ 88-90; Elshikh Decl. ¶¶ 1, 3. These alleged injuries have already occurred and likely will continue to occur upon implementation of the Executive Order. Indeed, irreparable harm may be presumed with the finding of a violation of the First Amendment. See Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) ( "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" ) ( quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) ); (Mar 15, 2017)
on lawsuits across the nation : It inspired several lawsuits across the nation in the days that followed. ( footnote 4 ) Among those lawsuits was this one: On February 3, 2017, the State filed its complaint and an initial motion for TRO, which sought to enjoin, nationwide, Sections 3(c), 5(a)-(c), and 5(e) of Execurtive Order No. 13,769. Pls.' Mot. for TRO, Feb. 3, 2017, ECF No. 2. (Mar 15, 2017)
on Lemon v. Kurtzman : To determine whether the Executive Order runs afoul of that command, the Court is guided by the three-part test for Establishment Clause claims set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). (Mar 15, 2017)
on likelihood of success : Upon evaluation of the parties' submissions, and following a hearing on March 15,2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. (Mar 15, 2017)
on likelihood of success : The Court turns to whether Plaintiffs sufficiently establish a likelihood of success on the merits of their Count I claim that the Executive Order violates the Establishment Clause of the First Amendment. Because 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 Execurtive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim. ( footnote 11 ) (Mar 15, 2017)
on likelihood to succeed : A "plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council,Inc., 555 U.S. 7, 20 (2008) ( citation omitted ) (Mar 15, 2017)
on merits : "[I]f a plaintiff can only show that there are 'serious questions going to the merits'--a lesser showing than likelihood of success on the merits--then a preliminary injunction may still issue if the '"balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) ( quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) ( emphasis by Shell Offshore )). (Mar 15, 2017)
on merits : A "plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council,Inc., 555 U.S. 7, 20 (2008) ( citation omitted ) (Mar 15, 2017)
on motivations behind the Executive Order : While these additional assertions certainly call the motivations behind the Executive Order into greater question,( footnote 16 ) they are not necessary to the Court's Establishment Clause determination. See Aziz, 2017 WL 580855, at *8 ( the Establishment Clause concerns addressed by the district court's order "do not involve an assessment of the merits of the president's national security judgment. Instead, the question is whether [Executive Order No. 13,769] was animated by national security concerns at all, as opposed to the impermissible notion of, in the context of entry, disfavoring one religious group, and in the context of refugees, favoring another religious group" ). (Mar 15, 2017)
on nationality : (2) violation of the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion, national origin, nationality, or alienage ( Count II ); (Mar 15, 2017)
on national origin : (2) violation of the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion, national origin, nationality, or alienage ( Count II ); (Mar 15, 2017)
on Ninth Circuit : The Ninth Circuit heard oral argument on February 7, after which it denied the emergency motion via written Order dated February 9, 2017. See Case No. 17-35105, ECF Nos. 125 ( Tr. of Hr'g ), 134 ( Filed Order for Publication at 847 F.3d 1151 ). (Mar 15, 2017)
on parens patriae : The State alleges standing based both upon injuries to its proprietary interests and to its quasi-sovereign interests, i.e., in its role as parens patriae. ( footnote 7 ) Just as the Ninth Circuit panel in Washington concluded on a similar record that the alleged harms to the states' proprietary interests as operators of their public universities were sufficient to support standing, the Court concludes likewise here. The Court does not reach the State's alternative standing theory based on the protection of the interests of its citizens as parens patriae. See Washington, 847 F.3d at 1168 n.5 ( "The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States' proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments." ). (Mar 15, 2017)
on parens patriae theory : footnote 7. The State's parens patriae theory focuses on the Execurtive Order subject[ing] citizens of Hawaii like Dr. Elshikh to discrimination and marginalization while denying all residents of the State the benefits of a pluralistic and inclusive society. Hawaii has a quasi-sovereign interest in 'securing [its] residents from the harmful effects of discrimination.' Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 609 (1982). (Mar 15, 2017)
on Plaintiffs' Motion for TRO : The final step in determining whether to grant the Plaintiffs' Motion for TRO is to assess the balance of equities and examine the general public interests that will be affected. (Mar 15, 2017)
on Plaintiffs' Second Amended Complaint : Plaintiffs' Second Amended Complaint ( ECF No. 64 ) and Motion for TRO (ECF No. 65 ) contend that portions of the new Executive Order suffer from the same infirmities as those provisions of Executive Order No. 13,769 enjoined in Washington, 847 F.3d 1151. (Mar 15, 2017)
on preliminary injunction : The standard for issuing a temporary restraining order is substantially identical to the standard for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). (Mar 15, 2017)
on preliminary injunction : footnote 15. This Court is not the first to examine these issues. In Aziz v. Trump, United States District Court Judge Leonie Brinkema determined that plaintiffs were likely to succeed on the merits of their Establishment Clause claim as it related to Executive Order No. 13,769. Accordingly, Judge Brinkema granted the Commonwealth of Virginia's motion for preliminary injunction. Aziz v. Trump, F. Supp. 3d , 2017 WL 580855, at *7-*10 ( E.D. Va. Feb. 13, 2017 ). (Mar 15, 2017)
on preliminary injunction : "[I]f a plaintiff can only show that there are 'serious questions going to the merits'--a lesser showing than likelihood of success on the merits--then a preliminary injunction may still issue if the '"balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) ( quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) ( emphasis by Shell Offshore )). (Mar 15, 2017)
on preliminary injunction hearing : The underlying purpose of a TRO is to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing is held. Granny Goose Foods, 415 U.S. 423, 439 (1974); see also Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006). (Mar 15, 2017)
on President's authority : They argue that "both of these sections are unlawful in all of their applications:" Section 2 discriminates on the basis of nationality, Sections 2 and 6 exceed the President's authority under 8 U.S.C. §§ 1182(f) and 1185(a), and both provisions are motivated by anti-Muslim animus. TRO Mem. 50, Dkt. No. 65-1. (Mar 15, 2017)
on procedural violation : (8) procedural violation of the APA, 5 U.S.C. § 706 (2)(D) ( Count VIII ). (Mar 15, 2017)
on proper party : "While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur." Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997). (Mar 15, 2017)
on public interest : A "plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council,Inc., 555 U.S. 7, 20 (2008) ( citation omitted ) (Mar 15, 2017)
on quasi-sovereign interests : The State alleges standing based both upon injuries to its proprietary interests and to its quasi-sovereign interests, i.e., in its role as parens patriae. ( footnote 7 ) Just as the Ninth Circuit panel in Washington concluded on a similar record that the alleged harms to the states' proprietary interests as operators of their public universities were sufficient to support standing, the Court concludes likewise here. The Court does not reach the State's alternative standing theory based on the protection of the interests of its citizens as parens patriae. See Washington, 847 F.3d at 1168 n.5 ( "The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States' proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments." ). (Mar 15, 2017)
on questionable evidence : When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government's national security motivations, the balance of equities and public interests justify granting the Plaintiffs' TRO. See Aziz, 2017 WL 580855, at *10. Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim. (Mar 15, 2017)
on redress of injury : (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) ( quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) ). (Mar 15, 2017)
on religion : (2) violation of the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion, national origin, nationality, or alienage ( Count II ); (Mar 15, 2017)
on Religious Freedom Restoration Act( : (6) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 200bb-1(a) ( Count VI ); (Mar 15, 2017)
on RFRA : (6) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 200bb-1(a) ( Count VI ); (Mar 15, 2017)
on RFRA : (7) substantive violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A)-(C), through violations of the Constitution, INA, and RFRA ( Count VII ); (Mar 15, 2017)
on ripeness : "[I]n many cases, ripeness coincides squarely with standing's injury in fact prong." Thomas v. Anchorage Equal Rights Comm'n, 26 220 F.3d 1134, 1138 (9th Cir. 2000) ( en banc ). (Mar 15, 2017)
on ripeness : In fact, the ripeness inquiry is often "characterized as standing on a timeline." Id. "A claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Texas v. United States, 523 U.S. 296, 300 (1998) ( quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) ). (Mar 15, 2017)
on Sections 2 and 6 of the Executive Order : Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation. (Mar 15, 2017)
on Sections 3(c), 5(a)-(c), and 5(e) of Executive Order No. 13,769. : It inspired several lawsuits across the nation in the days that followed. ( footnote 4 ) Among those lawsuits was this one: On February 3, 2017, the State filed its complaint and an initial motion for TRO, which sought to enjoin, nationwide, Sections 3(c), 5(a)-(c), and 5(e) of Executive Order No. 13,769. Pls.' Mot. for TRO, Feb. 3, 2017, ECF No. 2. (Mar 15, 2017)
on secular purpose : According to Lemon, government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion. Id. (Mar 15, 2017)
on secular purpose : Because the Executive Order at issue here cannot survive the secular purpose prong, the Court does not reach the balance of the criteria. See id. ( noting that it is unnecessary to reach the second or third Lemon criteria if the challenged law or practice fails the first test ). (Mar 15, 2017)
on separation between church and state : The State purports that the Execurtive Order has injured its institutions, economy, and sovereign interest in maintaining the separation between church and state. SAC ¶¶ 4-5. (Mar 15, 2017)
on six countries : Section 2 of the new Executive Order suspends from "entry into the United States" for a period of 90 days, certain nationals of six countries referred to in Section 217(a)(12) of the Immigration and Nationality Act ("INA"), 8 U.S.C. sec.-1101 et seq.: Iran, Libya, Somalia, Sudan, Syria, and Yemen. ( footnote 6 ) 8 U.S.C. sec 1187(a)(12); Exec. Order § 2(c). (Mar 15, 2017)
on standing : "At bottom, 'the gist of the question of standing' is whether petitioners have 'such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.'" Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) ( en banc ) ( quoting Massachusetts, 549 U.S. at 517)). (Mar 15, 2017)
on standing : "[I]n many cases, ripeness coincides squarely with standing's injury in fact prong." Thomas v. Anchorage Equal Rights Comm'n, 26 220 F.3d 1134, 1138 (9th Cir. 2000) ( en banc ). (Mar 15, 2017)
on standing : Tourism accounted for $15 billion in spending in 2015, 21 and a decline in tourism has a direct effect on the State's revenue. See SAC ¶ 18. Because there is preliminary evidence that losses of current and future revenue are traceable to the Execurtive Order, this injury to the State's proprietary interest also appears sufficient to confer standing. Cf. Texas v. United States, 809 F.3d 134, 155-56 (5th Cir. 2015), aff'd by an equally divided Court, 136 S. Ct. 2271 ( 2016 ) ( holding that the "financial loss[es]" that Texas would bear, due to having to grant drivers licenses, constituted a concrete and immediate injury for standing purposes ). (Mar 15, 2017)
on standing : Courts observe that the injury-in-fact prerequisite can be "particularly elusive" in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest. Despite that, a plaintiff may nonetheless show an injury that is sufficiently concrete, particularized, and actual to confer standing. See Catholic League, 624 F.3d at 1048-49; Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1250 (9th Cir. 2007) ( "The concept of a "concrete injury" is particularly elusive in the Establishment Clause context." ). (Mar 15, 2017)
on standing : Here, the issue presented requires no further factual development, is largely a legal question, and chills allegedly protected First Amendment expression." ); see also Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) ( "[W]hen the threatened enforcement effort implicates First Amendment [free speech] rights, the inquiry tilts dramatically toward a finding of standing." ). (Mar 15, 2017)
on standing : None of these propositions, however, alter the Court's finding that Dr. Elshikh has sufficiently established, at this preliminary stage, that he has suffered an injury-in-fact separate and apart from his mother-in-law that is sufficiently concrete, particularized, and actual to confer standing. (Mar 15, 2017).
on standing : The State alleges standing based both upon injuries to its proprietary interests and to its quasi-sovereign interests, i.e., in its role as parens patriae. ( footnote 7 ) Just as the Ninth Circuit panel in Washington concluded on a similar record that the alleged harms to the states' proprietary interests as operators of their public universities were sufficient to support standing, the Court concludes likewise here. The Court does not reach the State's alternative standing theory based on the protection of the interests of its citizens as parens patriae. See Washington, 847 F.3d at 1168 n.5 ( "The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States' proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments." ). (Mar 15, 2017)
on standing : These injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context. (Mar 15, 2017)
on standing : "While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur." Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997). (Mar 15, 2017)
on State's initial TRO motion : This Court did not rule on the State's initial TRO motion because later that same day, the United States District Court for the Western District of Washington entered a nationwide preliminary injunction enjoining the Government from enforcing the same provisions of Executive Order No. 13,769 targeted by the State here. See Washington v. Trump, 2017 WL 462040. (Mar 15, 2017)
on State's proprietary interest : Tourism accounted for $15 billion in spending in 2015, 21 and a decline in tourism has a direct effect on the State's revenue. See SAC ¶ 18. Because there is preliminary evidence that losses of current and future revenue are traceable to the Execurtive Order, this injury to the State's proprietary interest also appears sufficient to confer standing. Cf. Texas v. United States, 809 F.3d 134, 155-56 (5th Cir. 2015), aff'd by an equally divided Court, 136 S. Ct. 2271 ( 2016 ) ( holding that the "financial loss[es]" that Texas would bear, due to having to grant drivers licenses, constituted a concrete and immediate injury for standing purposes ). (Mar 15, 2017)
on status quo : The underlying purpose of a TRO is to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing is held. Granny Goose Foods, 415 U.S. 423, 439 (1974); see also Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006). (Mar 15, 2017)
on Supreme Court : The Supreme Court has been even more emphatic: courts may not "turn a blind eye to the context in which [a] policy arose." McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005) ( citation and quotation signals omitted ). ( footnote 13 ) (Mar 15, 2017)
on Supreme Court : footnote 13 In McCreary, the Supreme Court examined whether the posting of successive Ten Commandments displays at two county courthouses violated the Establishment Clause. 545 U.S. at 850-82. (Mar 15, 2017)
on Ten Commandments : footnote 13 In McCreary, the Supreme Court examined whether the posting of successive Ten Commandments displays at two county courthouses violated the Establishment Clause. 545 U.S. at 850-82. (Mar 15, 2017)
on test for Establishment Clause claims : To determine whether the Execurtive Order runs afoul of that command, the Court is guided by the three-part test for Establishment Clause claims set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). (Mar 15, 2017)
on travel-ban : Like his children, Dr Elshikh is "deeply saddened by the message that [both Execurtive Orders] convey--that a broad travel-ban is 'needed' to prevent people from certain Muslim countries from entering the United States." Elshikh Decl. ¶ 1 (Mar 15, 2017)
on U.S. Department of State : footfootnote 2 Defendants in the instant action are: Donald J. Trump, in his official capacity as President of the United States; the U.S. Department of Homeland Security (DHS); John F. Kelly, in his official capacity as Secretary of DHS; the U.S. Department of State; Rex Tillerson, in his official capacity as Secretary of State; and the United States of America. (Mar 15, 2017)
on vetting measure : 51. When signing the first Execurtive Order [No. 13,769], President Trump read the title, looked up, and said: "We all know what that means." President Trump said he was "establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America," -- and that: "We don't want them here." (Mar 15, 2017)
on violation of the Establishment Clause. : footnote 13 In McCreary, the Supreme Court examined whether the posting of successive Ten Commandments displays at two county courthouses violated the Establishment Clause. 545 U.S. at 850-82. (Mar 15, 2017)
on violationv of the Establishment Clause : (1) violation of the Establishment Clause of the First Amendment ( Count I ); (Mar 15, 2017)
on violation of the equal protection guarantees : (2) violation of the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion, national origin, nationality, or alienage ( Count II ); (Mar 15, 2017)
on violation of the Due Process Clause : (3) violation of the Due Process Clause of the Fifth Amendment based upon substantive due process rights ( Count III ); (Mar 15, 2017)
on violation of the APA : (7) substantive violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A)-(C), through violations of the Constitution, INA, and RFRA ( Count VII ); (Mar 15, 2017)
on violations of the Constitution : (7) substantive violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A)-(C), through violations of the Constitution, INA, and RFRA ( Count VII ); (Mar 15, 2017)
on violation of the First Amendment : Dr. Elshikh has made a preliminary showing of direct, concrete injuries to the exercise of his Establishment Clause rights. See, e.g., SAC ¶¶ 88-90; Elshikh Decl. ¶¶ 1, 3. These alleged injuries have already occurred and likely will continue to occur upon implementation of the Executive Order. Indeed, irreparable harm may be presumed with the finding of a violation of the First Amendment. See Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) ( "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" ) ( quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) ); (Mar 15, 2017)
on Virginia's motion : This Court is not the first to examine these issues. In Aziz v. Trump, United States District Court Judge Leonie Brinkema determined that plaintiffs were likely to succeed on the merits of their Establishment Clause claim as it related to Executive Order No. 13,769. Accordingly, Judge Brinkema granted the Commonwealth of Virginia's motion for preliminary injunction. Aziz v. Trump, F. Supp. 3d , 2017 WL 580855, at *7-*10 ( E.D. Va. Feb. 13, 2017 ). (Mar 15, 2017)
There are 140 entries in the "Highlights of the Order of March 15th, 2017, granting the State of Hawaii's motion for Temporary Restraining Order" page.
Index to the TRO
About:The Interactive Index gives the reader a bird's eye view of the content of the page. Click on a term to go to the pertinent paragraph in the Temporary Restraining Order.
There are 117 entries in the "Index to Judge Derrick Watson Temporary Restraining Order of Mar 15, 2017" page.
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