July | August 2017







The Second Blocked Travel Ban and States

By Lisa Soronen, executive director of the State and Local Legal Center
On March 16, 2017, President Donald Trump’s second travel ban executive order was scheduled to go into effect. Within hours of each other, federal judges from Hawaii and Maryland issued decisions temporarily preventing portions of it from going into effect nationwide. The Hawaii court concluded the state has standing to challenge the travel ban due to the possible harm to its main economic driver— travel and tourism.
Hawaii Attorney General Doug Chin recently said in a press conference, “There are already reports that due to these executive orders and travel bans, people are less inclined to travel to the United States.” Although the travel ban only applies to six countries—Iran, Libya, Somalia, Sudan, Syria and Yemen—many states are concerned about the possible impact to their travel and tourism industries.
According to the U.S. Travel Association, travel and tourism generates more than $2.1 trillion in revenue, including $148 billion in direct taxes to federal, state and local governments, and helps support more than 15 million jobs in the U.S. According to the latest statistics, about 77.5 million visitors traveled to the U.S. in 2015.
This is especially significant for Hawaii’s economy. According to Hawaii’s Tourism Authority, the state received more than 8.9 million visitors in 2016, resulting in more than $1.8 billion in state tax revenue.
The president’s first travel ban executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders and refugees.
The second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers.
Both decisions conclude that the second executive order likely violates the Establishment Clause because it was intended to prevent people from entering the United States on the basis of religion. The Establishment Clause prevents the government from preferring one religion over another. To that end, laws must have a secular purpose.
Derrick Watson, U.S. District Court judge in Hawaii, reasoned that “a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequences of events leading to its issuance” would conclude the executive order was intended to disfavor Muslims despite its “stated, religiously neutral purpose.” More specifically, the court relied on numerous statements made by the president himself indicating he wanted a “Muslim ban.”
Theodore Chuang, U.S. District Court judge in Maryland, stated a similar analysis in his decision. However, he spends more time dismissing the notion that national security concerns were the real reason for the travel ban.
“The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale,” Chuang said.
Trump will appeal both rulings to the Ninth and Fourth Circuits, respectively.
In a recent press conference, the White House confirmed that the president would like to take this travel ban (and the first one) all the way to the Supreme Court.
On March 15, 2017, the full Ninth Circuit issued an opinion stating that it would not rehear the case regarding the first travel ban. Five Ninth Circuit judges dissented from this decision, concluding that the first travel ban was “well within the powers of the presidency.”
If the president appeals the Hawaii ruling to the Ninth Circuit, it is possible that the three-judge panel could include between zero and three of these dissenting judges.