Hawaii filed a motion with the United States District Court of Hawaii as the initial step toward a challenge of President Donald Trump’s second immigration executive order. Hawaii Attorney General Douglas C. Chin started out badly by publicly characterizing the order as a “Muslim ban 2.o.” While there are legitimate grounds that can be raises to challenge the order, it is not a Muslim ban under any cognizable legal analysis. Once again, I believe that the law favored the Administration even with the first poorly drafted executive order. This order will be even more difficult to challenge in my view. If the challengers want to be successful, they might want to curtail the political hyperbole in favor of legal analysis.
The Administration itself filed in the Ninth Circuit to formally end its appeal. That will create an interesting element to the Hawaii litigation, which is in the 9th Circuit. The opinion (which has been widely criticized by various experts including myself) will now be left as precedent. That will give some added help to the challengers but it is not determinative for the new litigation.
The filing asks for the judge to approve a briefing schedule for a forthcoming motion seeking a temporary restraining order over the new executive order.
Such an order can only be secured by satisfying a higher standard since the Supreme Court has cautioned that a “preliminary injunction is an extraordinary and drastic remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc. (2008). The District of Hawaii has held that the standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. See G. v. State of Haw., Dep’t of Human Servs., 2009 WL 2877597 (D. Haw. Sept. 4, 2009); Schoenlein v. Halawa Corr. Facility, 2008 WL 2437744 (D. Haw. June 13, 2008). Accordingly, the challengers will have to establish that a likelihood of succeeding on the merits, a likelihood that they will suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest.
The plan appears to be to file an amended complaint since the state previously challenged the first executive order.
Outside counsel for Hawaii, Neal Katyal, went on air last night even before the actual amended complaint was filed. (Katyal and I debated these issues on PBS Newshour roughly a month ago) He stated that the timing of the new order (which will not take effect under March 16th) contradicts the president’s past argument that “if the ban were announced with a one week notice, the “bad” would rush into our country during that week.” He went on to say “Of course, this time not only did he take a week but he took 10 days,” Katyal said. “So I really think it just underscores the lack of national security justification here — this isn’t about protecting us from bad guys rushing into the country, this is about politics.”
I have previously criticized the first executive order as poorly drafted, poorly executed, and poorly defended. I also said that the Ninth Circuit decision was poorly written. Indeed, this is a case where both branches could do with a “do over.”
I also criticized the delays and leaks out of the Administration that undermined the national security claims of urgency. I was particularly critical of the statement of a senior executive officer that the second order would be delayed again to guarantee that the order “has its own moment.” Once again, after a torrent of criticism over the lack of urgency, this statement further erodes the credibility of the Administration. It is perfectly bizarre to hear these statements from what appears entirely tone-deaf, tactically-challenged aides. An executive order is not like some debutante that longs for its own moment like a coming out party at Mardi Gras.
However, none of that makes for a compelling legal argument. The government could argue that it believed it was necessary not to signal the release of the first order to prevent high-risk individuals from rushing into the country. After the first order, it was well known that a second order was being drafted so the element of surprise was gone. Moreover, with the earlier Ninth Circuit decision, the Administration was wise to fully vet this draft and try to accommodate concerns of the courts.
As previously discussed, I believe that the odds favor the Administration in prevailing in the long run. It could face a mix of decisions on the lower courts as it did with the first order. However, this order is a better product and presumably the Justice Department will markedly improve its performance in the defense of the order.