State of Hawaii v. Trump
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER 65 . Signed by JUDGE DERRICK K. WATSON on 3/15/2017. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry (Main Document 219 replaced on 3/22/2017) (mta, ).
IN THE UNITED STATES DISTRICT COURT
FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
12:32 pm, Mar 15, 2017
FOR THE DISTRICT OF HAWAI‘I
STATE OF HAWAI‘I and ISMAIL
SUE BEITIA, CLERK
CV. NO. 17-00050 DKW-KSC
ORDER GRANTING MOTION
DONALD J. TRUMP, et al.,
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). 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 (Mar. 6, 2017). The Executive Order
revokes Executive Order No. 13,769 upon taking effect.1 Exec. Order §§ 13, 14.
Like its predecessor, the Executive Order restricts the entry of foreign nationals from
specified countries and suspends entrants from the United States refugee program
for specified periods of time.
Plaintiffs State of Hawai‘i (“State”) and Ismail Elshikh, Ph.D. seek a
nationwide temporary restraining order that would prohibit the Federal Defendants2
from “enforcing or implementing Sections 2 and 6 of the Executive Order” before it
takes effect. Pls.’ Mot. for TRO 4, Mar. 8, 2017, ECF No. 65.3 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. Accordingly, Plaintiffs’ Motion for TRO (ECF. No. 65) is granted
for the reasons detailed below.
By its terms, the Executive Order becomes effective as of March 16, 2017 at 12:01 a.m., Eastern
Daylight Time—i.e., March 15, 2017 at 6:01 p.m. Hawaii Time. Exec. Order § 14.
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.
Plaintiffs filed a Second Amended Complaint for Declaratory and Injunctive Relief (“SAC”) on
March 8, 2017 simultaneous with their Motion for TRO. SAC, ECF. No. 64.
The President’s Executive Orders
Executive Order No. 13,769
Executive Order No. 13,769 became effective upon signing on January 27,
2017. See 82 Fed. Reg. 8977. It inspired several lawsuits across the nation in the
days that followed.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.
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. As such, the Court stayed this
case, effective February 7, 2017, specifying that the stay would continue “as long as
See, e.g., Mohammed v. United States, No. 2:17-cv-00786-AB-PLA (C.D. Cal. Jan. 31, 2017);
City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D. Cal. Jan. 31, 2017);
Louhghalam v. Trump, Civil Action No. 17-cv-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017);
Int’l Refugee Assistance Project v. Trump, No. 8:17-0361-TDC (D. Md. filed Feb. 7, 2017);
Darweesh v. Trump, 17 Civ. 480 (AMD), 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017); Aziz v.
Trump, --- F. Supp. 3d ----, 2017 WL 580855 (E.D. Va. Feb. 13, 2017); Washington v. Trump,
Case No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), emergency stay denied,
847 F.3d 1151 (9th Cir. 2017). This list is not exhaustive.
the February 3, 2017 injunction entered in Washington v. Trump remain[ed] in full
force and effect, or until further order of this Court.” ECF Nos. 27 & 32.
On February 4, 2017, the Government filed an emergency motion in the Ninth
Circuit Court of Appeals seeking a stay of the Washington TRO, pending appeal.5
See Washington v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017). 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).
On March 8, 2017, the Ninth Circuit granted the Government’s unopposed
motion to voluntarily dismiss the appeal. See Order, No. 17-35105 (9th Cir. Mar. 8,
2017), ECF No. 187. As a result, the same sections of Executive Order No. 13,769
initially challenged by the State in the instant action remain enjoined as of the date of
The New Executive Order
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.
The Government also requested “an immediate administrative stay pending full consideration of
the emergency motion for a stay pending appeal” on February 4, 2017 (Emergency Mot. to Stay,
No. 17-35105 (9th Cir.), ECF No. 14), which the Ninth Circuit panel swiftly denied (Order, No.
17-35105 (9th Cir.), ECF No. 15).
§ 1101 et seq.: Iran, Libya, Somalia, Sudan, Syria, and Yemen.6 8 U.S.C.
§ 1187(a)(12); Exec. Order § 2(c). The suspension of entry applies to nationals of
these six countries who (1) are outside the United States on the new Executive
Order’s effective date of March 16, 2017; (2) do not have a valid visa on that date,
and (3) did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January
27, 2017 (the date of the prior Executive Order, No. 13,769). Exec. Order § 3(a).
The 90-day suspension does not apply to: (1) lawful permanent residents; (2)
any foreign national admitted to or paroled into the United States on or after the
Executive Order’s effective date (March 16, 2017); (3) any individual who has a
document other than a visa, valid on the effective date of the Executive Order or
issued anytime thereafter, that permits travel to the United States, such as an advance
parole document; (4) any dual national traveling on a passport not issued by one of
the six listed countries; (5) any foreign national traveling on a diplomatic-type or
other specified visa; and (6) any foreign national who has been granted asylum, any
refugee already admitted to the United States, or any individual granted withholding
of removal, advance parole, or protection under the Convention Against Torture.
See Exec. Order § 3(b).
Because of the “close cooperative relationship” between the United States and the Iraqi
government, the Executive Order declares that Iraq no longer merits inclusion in this list of
countries, as it was in Executive Order No. 13,769. Iraq “presents a special case.” Exec. Order
Under Section 3(c)’s waiver provision, foreign nationals of the six countries
who are subject to the suspension of entry may nonetheless seek entry on a
case-by-case basis. The Executive Order includes the following list of
circumstances when such waivers “could be appropriate:”
(i) the foreign national has previously been admitted to the
United States for a continuous period of work, study, or other
longterm activity, is outside the United States on the effective
date of the Order, seeks to reenter the United States to resume
that activity, and denial of reentry during the suspension period
would impair that activity;
(ii) the foreign national has previously established significant
contacts with the United States but is outside the United States
on the effective date of the Order for work, study, or other lawful
(iii) the foreign national seeks to enter the United States for
significant business or professional obligations and the denial of
entry during the suspension period would impair those
(iv) the foreign national seeks to enter the United States to visit a
close family member (e.g., a spouse, child, or parent) who is a
United States citizen, lawful permanent resident, or alien
lawfully admitted on a valid nonimmigrant visa, and the denial
of entry during the suspension period would cause undue
(v) the foreign national is an infant, a young child or adoptee, an
individual needing urgent medical care, or someone whose entry
is otherwise justified by the special circumstances of the case;
(vi) the foreign national has been employed by, or on behalf of,
the United States Government (or is an eligible dependent of
such an employee) and the employee can document that he or she
has provided faithful and valuable service to the United States
(vii) the foreign national is traveling for purposes related to an
international organization designated under the International
Organizations Immunities Act (IOAI), 22 U.S.C. § 288 et seq.,
traveling for purposes of conducting meetings or business with
the United States Government, or traveling to conduct business
on behalf of an international organization not designated under
(viii) the foreign national is a landed Canadian immigrant who
applies for admission at a land border port of entry or a
preclearance location located in Canada; or
(ix) the foreign national is traveling as a United States
Government sponsored exchange visitor.
Exec. Order § 3(c).
Section 6 of the Executive Order suspends the U.S. Refugee Admissions
Program for 120 days. The suspension applies both to travel into the United States
and to decisions on applications for refugee status for the same period. See Exec.
Order § 6(a). It excludes refugee applicants who were formally scheduled for
transit by the Department of State before the March 16, 2017 effective date. Like
the 90-day suspension, the 120-day suspension includes a waiver provision that
allows the Secretaries of State and DHS to admit refugee applicants on a
case-by-case basis. See Exec. Order § 6(c). The Executive Order identifies
examples of circumstances in which waivers may be warranted, including: where
the admission of the individual would allow the United States to conform its conduct
to a pre-existing international agreement or denying admission would cause undue
hardship. Exec. Order § 6(c). Unlike Executive Order No. 13,769, the new
Executive Order does not expressly refer to an individual’s status as a “religious
minority” or refer to any particular religion, and it does not include a Syria-specific
ban on refugees.
Section 1 states that the purpose of the Executive Order is to “protect [United
States] citizens from terrorist attacks, including those committed by foreign
nationals.” Section 1(h) identifies two examples of terrorism-related crimes
committed in the United States by persons entering the country either “legally on
visas” or “as refugees”:
 In January 2013, two Iraqi nationals admitted to the United
States as refugees in 2009 were sentenced to 40 years and to life
in prison, respectively, for multiple terrorism-related offenses.
 [I]n October 2014, a native of Somalia who had been brought
to the United States as a child refugee and later became a
naturalized United States citizen was sentenced to 30 years in
prison for attempting to use a weapon of mass destruction[.]
Exec. Order § 1(h).
By its terms, the Executive Order also represents a response to the Ninth
Circuit’s decision in Washington v. Trump. See 847 F.3d 1151. According to the
Government, it “clarifies and narrows the scope of Executive action regarding
immigration, extinguishes the need for emergent consideration, and eliminates the
potential constitutional concerns identified by the Ninth Circuit.” See Notice of
Filing of Executive Order 4–5, ECF No. 56.
It is with this backdrop that we turn to consideration of Plaintiffs’ restraining
Plaintiffs’ Motion For TRO
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. Once more, the State asserts that the Executive Order
inflicts constitutional and statutory injuries upon its residents, employers, and
educational institutions, while Dr. Elshikh alleges injuries on behalf of himself, his
family, and members of his Mosque. SAC ¶ 1.
Plaintiffs allege that the Executive Order subjects portions of the State’s
population, including Dr. Elshikh and his family, to discrimination in violation of
both the Constitution and the INA, denying them their right, among other things, to
associate with family members overseas on the basis of their religion and national
origin. 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.
According to Plaintiffs, the Executive order also results in “their having to
live in a country and in a State where there is the perception that the Government has
established a disfavored religion.” SAC ¶ 5. Plaintiffs assert that by singling out
nationals from the six predominantly Muslim countries, the Executive Order causes
harm by stigmatizing not only immigrants and refugees, but also Muslim citizens of
the United States. Plaintiffs point to public statements by the President and his
advisors regarding the implementation of a “Muslim ban,” which Plaintiffs contend
is the tacit and illegitimate motivation underlying the Executive Order. See SAC
¶¶ 35–51. For example, Plaintiffs point to the following statements made
contemporaneously with the implementation of Executive Order No. 13,769 and in
its immediate aftermath:
48. In an interview on January 25, 2017, Mr. Trump discussed
his plans to implement “extreme vetting” of people seeking entry
into the United States. He remarked: “[N]o, it’s not the Muslim
ban. But it’s countries that have tremendous terror. . . . [I]t’s
countries that people are going to come in and cause us
49. Two days later, on January 27, 2017, President Trump
signed an Executive Order entitled, “Protecting the Nation From
Foreign Terrorist Entry into the United States.”
50. The first Executive Order [No. 13,769] was issued without
a notice and comment period and without interagency review.
Moreover, the first Executive Order was issued with little
explanation of how it could further its stated objective.
51. When signing the first Executive 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.”
58. In a January 27, 2017 interview with Christian
Broadcasting Network, President Trump said that persecuted
Christians would be given priority under the first Executive
Order. He said (once again, falsely): “Do you know if you were
a Christian in Syria it was impossible, at least very tough to get
into the United States? If you were a Muslim you could come
in, but if you were a Christian, it was almost impossible and the
reason that was so unfair, everybody was persecuted in all
fairness, but they were chopping off the heads of everybody but
more so the Christians. And I thought it was very, very unfair.
So we are going to help them.”
59. The day after signing the first Executive Order [No.
13,769], President Trump’s advisor, Rudolph Giuliani,
explained on television how the Executive Order came to be.
He said: “When [Mr. Trump] first announced it, he said,
‘Muslim ban.’ He called me up. He said, ‘Put a commission
together. Show me the right way to do it legally.’”
60. The President and his spokespersons defended the rushed
nature of their issuance of the first Executive Order [No. 13,769]
on January 27, 2017, by saying that their urgency was imperative
to stop the inflow of dangerous persons to the United States. On
January 30, 2017, President Trump tweeted: “If the ban were
announced with a one week notice, the ‘bad’ would rush into our
country during that week.” In a forum on January 30, 2017 at
George Washington University, White House spokesman Sean
Spicer said: “At the end of the day, what was the other option?
To rush it out quickly, telegraph it five days so that people could
rush into this country and undermine the safety of our nation?”
On February 9, 2017, President Trump claimed he had sought a
one-month delay between signing and implementation, but was
told by his advisors that “you can’t do that because then people
are gonna pour in before the toughness.”
SAC ¶¶ 48–51, 58–60 (footnotes and citations omitted).
Plaintiffs also highlight statements by members of the Administration prior to
the signing of the new Executive Order, seeking to tie its content to Executive Order
No. 13,769 enjoined by the Washington TRO. In particular, they note that:
On February 21, Senior Advisor to the President, Stephen Miller,
told Fox News that the new travel ban would have the same
effect as the old one. He said: “Fundamentally, you’re still
going to have the same basic policy outcome for the country, but
you’re going to be responsive to a lot of very technical issues that
were brought up by the court and those will be addressed. But
in terms of protecting the country, those basic policies are still
going to be in effect.”
SAC ¶ 74(a) (citing Miller: New order will be responsive to the judicial ruling; Rep.
Ron DeSantis: Congress has gotten off to a slow start, The First 100 Days (Fox
News television broadcast Feb. 21, 2017), transcript available at
https://goo.gl/wcHvHH (rush transcript)). Plaintiffs argue that, in light of these and
similar statements “where the President himself has repeatedly and publicly
espoused an improper motive for his actions, the President’s action must be
invalidated.” Pls.’ Mem. in Supp. of Mot. for TRO 2, ECF No. 65-1.
In addition to these accounts, Plaintiffs describe a draft report from the DHS,
which they contend undermines the purported national security rationale for the
Executive Order. See SAC ¶ 61 (citing SAC, Ex. 10, ECF No. 64-10). The
February 24, 2017 draft report states that citizenship is an “unlikely indicator” of
terrorism threats against the United States and that very few individuals from the
seven countries included in Executive Order No. 13,769 had carried out or attempted
to carry out terrorism activities in the United States. SAC ¶ 61 (citing SAC, Ex. 10,
ECF No. 64-10). According to Plaintiffs, this and other evidence demonstrates the
Administration’s pretextual justification for the Executive Order.
Plaintiffs assert the following 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); and (8) procedural violation of the APA, 5 U.S.C. § 706 (2)(D) (Count
Plaintiffs contend that these alleged violations of law have caused and
continue to cause them irreparable injury. To that end, through their Motion for
TRO, Plaintiffs seek to temporarily enjoin Defendants from enforcing and
implementing Sections 2 and 6 of the Executive Order. Mot. for TRO 4, ECF No.
65. 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.
Moreover, Plaintiffs assert that both sections infringe “on the ‘due process rights’ of
numerous U.S. citizens and institutions by barring the entry of non-citizens with
whom they have close relationships.” TRO Mem. 50 (quoting Washington, 847
F.3d at 1166).
Defendants oppose the Motion for TRO. The Court held a hearing on the
matter on March 15, 2017, before the Executive Order was scheduled to take effect.
Plaintiffs Have Demonstrated Standing At This Preliminary Phase
Article III Standing
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)). “[T]o satisfy Article III’s standing requirements, a plaintiff must show
(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (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)).
“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)).
“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.
The State Has 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.7 Just as the
The State’s parens patriae theory focuses on the Executive Order
subject[ing] citizens of Hawai‘i like Dr. Elshikh to discrimination and
marginalization while denying all residents of the State the benefits of a
pluralistic and inclusive society. Hawai‘i 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]
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.”).
Hawaii primarily asserts two proprietary injuries stemming from the
Executive Order. First, the State alleges the impacts that the Executive Order will
have on the University of Hawaii system, both financial and intangible. The
University is an arm of the State. See Haw. Const. art. 10, §§ 5, 6; Haw. Rev. Stat.
(“HRS”) § 304A-103. The University recruits students, permanent faculty, and
visiting faculty from the targeted countries. See, e.g., Suppl. Decl. of Risa E.
Dickson ¶¶ 6–8, Mot. for TRO, Ex. D-1, ECF No. 66-6. Students or faculty
Order also harms Hawai‘i by debasing its culture and tradition of ethnic
diversity and inclusion.
TRO Mem. 48, ECF No. 65-1.
suspended from entry are deterred from studying or teaching at the University, now
and in the future, irrevocably damaging their personal and professional lives and
harming the educational institutions themselves. See id.
There is also evidence of a financial impact from the Executive Order on the
University system. The University recruits from the six affected countries. It
currently has twenty-three graduate students, several permanent faculty members,
and twenty-nine visiting faculty members from the six countries listed. Suppl.
Dickson Decl. ¶ 7. The State contends that any prospective recruits who are
without visas as of March 16, 2017 will not be able to travel to Hawaii to attend the
University. As a result, the University will not be able to collect the tuition that
those students would have paid. Suppl. Dickson Decl. ¶ 8 (“Individuals who are
neither legal permanent residents nor current visa holders will be entirely precluded
from considering our institution.”). These individuals’ spouses, parents, and
children likewise would be unable to join them in the United States. The State
asserts that the Executive Order also risks “dissuad[ing] some of [the University’s]
current professors or scholars from continuing their scholarship in the United States
and at [the University].” Suppl. Dickson Decl. ¶ 9.
The State argues that the University will also suffer non-monetary losses,
including damage to the collaborative exchange of ideas among people of different
religions and national backgrounds on which the State’s educational institutions
depend. Suppl. Dickson Decl. ¶¶ 9–10, ECF no. 66-6; see also Original Dickson
Decl. ¶ 13, Mot. for TRO, Ex. D-2, ECF, 66-7; SAC ¶ 94. This will impair the
University’s ability to recruit and accept the most qualified students and faculty,
undermine its commitment to being “one of the most diverse institutions of higher
education” in the world, Suppl. Dickson Decl. ¶ 11, and grind to a halt certain
academic programs, including the University’s Persian Language and Culture
program, id. ¶ 8. Cf. Washington, 847 F.3d at 1160 (“[The universities] have a
mission of ‘global engagement’ and rely on such visiting students, scholars, and
faculty to advance their educational goals.”).
These types of injuries are nearly indistinguishable from those found to
support standing in the Ninth Circuit’s decision in Washington. See 847 F.3d at
1161 (“The necessary connection can be drawn in at most two logical steps: (1) the
Executive Order prevents nationals of seven countries from entering Washington
and Minnesota; (2) as a result, some of these people will not enter state universities,
some will not join those universities as faculty, some will be prevented from
performing research, and some will not be permitted to return if they leave. And we
have no difficulty concluding that the States’ injuries would be redressed if they
could obtain the relief they ask for: a declaration that the Executive Order violates
the Constitution and an injunction barring its enforcement.”).
The second proprietary injury alleged Hawaii alleges is to the State’s main
economic driver: tourism. The State contends that the Executive Order will “have
the effect of depressing international travel to and tourism in Hawai‘i,” which
“directly harms Hawaii’s businesses and, in turn, the State’s revenue.” SAC ¶ 100,
ECF No. 64. See also Suppl. Decl. of Luis P. Salaveria ¶¶ 6–10, Mot. for TRO, Ex.
C-1, ECF No. 66-4 (“I expect, given the uncertainty the new executive order and its
predecessor have caused to international travel generally, that these changing
policies may depress tourism, business travel, and financial investments in
Hawaii.”). The State points to preliminary data from the Hawaii Tourism
Authority, which suggests that during the interval of time that the first Executive
Order was in place, the number of visitors to Hawai‘i from the Middle East dropped
(data including visitors from Iran, Iraq, Syria and Yemen). See Suppl. Decl. of
George Szigeti, ¶¶ 5–8, Mot. for TRO, Ex. B-1, ECF No. 66-2; see also SAC ¶ 100
(identifying 278 visitors in January 2017, compared to 348 visitors from that same
region in January 2016).8 Tourism accounted for $15 billion in spending in 2015,
This data relates to the prior Executive Order No. 13,769. At this preliminary stage, the Court
looks to the earlier order’s effect on tourism in order to gauge the economic impact of the new
Executive Order, while understanding that the provisions of the two differ. Because the new
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 Executive 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).
For purposes of the instant Motion for TRO, the State has preliminarily
demonstrated that: (1) its universities will suffer monetary damages and intangible
harms; (2) the State’s economy is likely to suffer a loss of revenue due to a decline in
tourism; (3) such harms can be sufficiently linked to the Executive Order; and
(4) the State would not suffer the harms to its proprietary interests in the absence of
implementation of the Executive Order. Accordingly, at this early stage of the
litigation, the State has satisfied the requirements of Article III standing.9
Executive Order has yet to take effect, its precise economic impact cannot presently be
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. Even if we assume
that States lack such rights, an issue we need not decide, that is irrelevant in this case because the
States are asserting the rights of their students and professors. Male doctors do not have personal
rights in abortion and yet any physician may assert those rights on behalf of his female patients.”
(citing Singleton v. Wulff, 428 U.S. 106, 118 (1976))). Unlike in Washington where there was no
Dr. Elshikh Has Standing
Dr. Elshikh is an American citizen of Egyptian descent and has been a
resident of Hawai‘i for over a decade. Declaration of Ismail Elshikh ¶ 1, Mot. for
TRO, Ex. A, ECF No. 66-1. He is the Imam of the Muslim Association of Hawai‘i
and a leader within Hawaii’s Islamic community. Elshikh Decl. ¶ 2. Dr. Elshikh’s
wife is of Syrian descent, and their young children are American citizens. Dr.
Elshikh and his family are Muslim. Elshikh Decl. ¶¶ 1, 3. His mother-in-law, also
Muslim, is a Syrian national without a visa, who last visited the family in Hawaii in
2005. Elshikh Decl. ¶¶ 4–5.
In September 2015, Dr. Elshikh’s wife filed an I-130 Petition for Alien
Relative on behalf of her mother. On January 31, 2017, Dr. Elshikh called the
National Visa Center and learned that his mother-in-law’s visa application had been
put on hold and would not proceed to the next stage of the process because of the
implementation of Executive Order No. 13,769. Elshikh Decl. ¶ 4. Thereafter, on
March 2, 2017, during the pendency of the nationwide injunction imposed by
Washington, Dr. Elshikh received an email from the National Visa Center advising
that his mother-in-law’s visa application had progressed to the next stage and that
her interview would be scheduled at an embassy overseas. Although no date was
individual plaintiff, Dr. Elshikh has standing to assert an Establishment Clause violation, as
given, the communication stated that most interviews occur within three months.
Elshikh Decl. ¶ 4. Dr. Elshikh fears that although she has made progress toward
obtaining a visa, his mother-in-law will be unable to enter the country if the new
Executive Order is implemented. Elshikh Decl. ¶ 4. According to Plaintiffs,
despite her pending visa application, Dr. Elshikh’s mother-in-law would be barred in
the short-term from entering the United States under the terms of Section 2(c) of the
Executive Order, unless she is granted a waiver, because she is not a current visa
Dr. Elshikh has standing to assert his claims, including an Establishment
Clause violation. 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.”).
“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
[e]ndorsement sends a message to nonadherents that they are
outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders,
favored members of the political community. Disapproval
sends the opposite message.” Plaintiffs aver that not only does
the resolution make them feel like second-class citizens, but that
their participation in the political community will be chilled by
the [government’s] hostility to their church and their religion.
Id. at 1048–49 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J.,
concurring)). Dr. Elshikh attests that he and his family suffer just such injuries
here. He declares that the effects of the Executive Order are “devastating to me, my
wife and children.” Elshikh Decl. ¶ 6, ECF No. 66-1.
Like his children, Dr. Elshikh is “deeply saddened by the message that [both
Executive Orders] convey—that a broad travel-ban is ‘needed’ to prevent people
from certain Muslim countries from entering the United States.” Elshikh Decl. ¶ 1
(“Because of my allegiance to America, and my deep belief in the American ideals
of democracy and equality, I am deeply saddened by the passage of the Executive
Order barring nationals from now-six Muslim majority countries from entering the
United States.”); id. ¶ 3 ([“My children] are deeply affected by the knowledge that
the United States—their own country—would discriminate against individuals who
are of the same ethnicity as them, including members of their own family, and who
hold the same religious beliefs. They do not fully understand why this is
happening, but they feel hurt, confused, and sad.”).
“Muslims in the Hawai‘i Islamic community feel that the new Executive
Order targets Muslim citizens because of their religious views and national origin.
Dr. Elshikh believes that, as a result of the new Executive Order, he and members of
the Mosque will not be able to associate as freely with those of other faiths.” SAC
¶ 90. These injuries are sufficiently personal, concrete, particularized, and actual to
confer standing in the Establishment Clause context.
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.
At this preliminary stage of the litigation, Dr. Elshikh has accordingly carried his
burden to establish standing under Article III.
“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). “[I]n many cases, ripeness coincides squarely
with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n,
220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). 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)).
The Government argues that “the only concrete injury Elshikh alleges is that
the Order ‘will prevent [his] mother-in-law’—a Syrian national who lacks a
visa—from visiting Elshikh and his family in Hawaii.” These claims are not ripe,
according to the Government, because there is a visa waiver process that Elshikh’s
mother-in-law has yet to even initiate. Govt. Mem. in Opp’n to Mot. for TRO
(citing SAC ¶ 85), ECF No. 145.
The Government’s premise is not true. Dr. Elshikh alleges direct, concrete
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, 3.10
These alleged injuries have already occurred and will continue to occur once the
There is no dispute that Dr. Elshikh’s mother-in-law does not currently possess a valid visa,
would be barred from entering as a Syrian national by Section 2(c) of the Executive Order, and has
not yet applied for a waiver under Section 3(c) of the Executive Order. Since the Executive Order
is not yet effective, it is difficult to see how she could. 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.
Executive Order is implemented and enforced—the injuries are not contingent ones.
Cf. 281 Care Comm. v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011) (“Plaintiffs’
alleged injury is not based on speculation about a particular future prosecution or the
defeat of a particular ballot question. . . . 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.”).
The Court turns to the merits of Plaintiffs’ Motion for TRO.
Legal Standard: Preliminary Injunctive Relief
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).
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). 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).
“[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
For the reasons that follow, Plaintiffs have met this burden here.
Analysis of TRO Factors: Likelihood of Success on the Merits
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 Executive 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
“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). 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). 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. “Failure to satisfy any one of the three prongs of
the Lemon test is sufficient to invalidate the challenged law or practice.” Newdow
v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1076–77 (9th Cir. 2010). 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).
The Court expresses no views on Plaintiffs’ due-process or INA-based statutory claims.
The Executive Order’s Primary Purpose
It is undisputed that the Executive Order does not facially discriminate for or
against any particular religion, or for or against religion versus non-religion. There
is no express reference, for instance, to any religion nor does the Executive
Order—unlike its predecessor—contain any term or phrase that can be reasonably
characterized as having a religious origin or connotation.
Indeed, the Government defends the Executive Order principally because of
its religiously neutral text —“[i]t applies to six countries that Congress and the prior
Administration determined posed special risks of terrorism. [The Executive Order]
applies to all individuals in those countries, regardless of their religion.” Gov’t.
Mem. in Opp’n 40. The Government does not stop there. By its reading, the
Executive Order could not have been religiously motivated because “the six
countries represent only a small fraction of the world’s 50 Muslim-majority nations,
and are home to less than 9% of the global Muslim population . . . [T]he suspension
covers every national of those countries, including millions of non-Muslim
individuals[.]” Gov’t. Mem. in Opp’n 42.
The illogic of the Government’s contentions is palpable. The notion that one
can demonstrate animus toward any group of people only by targeting all of them at
once is fundamentally flawed. 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)). Equally
flawed is the notion that the Executive Order cannot be found to have targeted Islam
because it applies to all individuals in the six referenced countries. It is undisputed,
using the primary source upon which the Government itself relies, that these six
countries have overwhelmingly Muslim populations that range from 90.7% to
99.8%.12 It would therefore be no paradigmatic leap to conclude that targeting
these countries likewise targets Islam. Certainly, it would be inappropriate to
conclude, as the Government does, that it does not.
The Government compounds these shortcomings by suggesting that the
Executive 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
See Pew-Templeton Global Religious Futures Project, Muslim Population by Country (2010),
available at http://www.globalreligiousfutures.org/religions/muslims.
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); and
Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68
(1977) (explaining that circumstantial evidence of intent, including the historical
background of the decision and statements by decisionmakers, may be considered in
evaluating whether a governmental action was motivated by a discriminatory
purpose)). 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).13 “[H]istorical context and ‘the specific sequence of events leading up
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.
to’” the adoption of a challenged policy are relevant considerations. Id. at 862; see
also Aziz, 2017 WL 580855, at *7.
A review of the historical background here makes plain why the Government
wishes to focus on the Executive Order’s text, rather than its context. The record
before this Court is unique. It includes significant and unrebutted evidence of
religious animus driving the promulgation of the Executive Order and its related
predecessor. For example—
In March 2016, Mr. Trump said, during an interview, “I think
Islam hates us.” Mr. Trump was asked, “Is there a war between
the West and radical Islam, or between the West and Islam
itself?” He replied: “It’s very hard to separate. Because you
don’t know who’s who.”
SAC ¶ 41 (citing Anderson Cooper 360 Degrees: Exclusive Interview With Donald
Trump (CNN television broadcast Mar. 9, 2016, 8:00 PM ET), transcript available
at https://goo.gl/y7s2kQ)). In that same interview, Mr. Trump stated: “But there’s
a tremendous hatred. And we have to be very vigilant. We have to be very
careful. And we can’t allow people coming into this country who have this hatred
of the United States. . . [a]nd of people that are not Muslim.”
Plaintiffs allege that “[l]ater, as the presumptive Republican nominee, Mr.
Trump began using facially neutral language, at times, to describe the Muslim ban.”
SAC ¶ 42. For example, they point to a July 24, 2016 interview:
Mr. Trump was asked: “The Muslim ban. I think you’ve pulled
back from it, but you tell me.” Mr. Trump responded: “I don’t
think it’s a rollback. In fact, you could say it’s an expansion.
I’m looking now at territories. People were so upset when I
used the word Muslim. Oh, you can’t use the word Muslim.
Remember this. And I’m okay with that, because I’m talking
territory instead of Muslim.”
SAC ¶ 44; Ex. 7 (Meet the Press (NBC television broadcast July 24, 2016),
transcript available at https://goo.gl/jHc6aU). And during an October 9, 2016
televised presidential debate, Mr. Trump was asked:
“Your running mate said this week that the Muslim ban is no
longer your position. Is that correct? And if it is, was it a
mistake to have a religious test?” Mr. Trump replied: “The
Muslim ban is something that in some form has morphed into
a[n] extreme vetting from certain areas of the world.” When
asked to clarify whether “the Muslim ban still stands,” Mr.
Trump said, “It’s called extreme vetting.”
SAC ¶ 45 (citing The American Presidency Project, Presidential Debates:
Presidential Debate at Washington University in St. Louis, Missouri (Oct. 9, 2016),
available at https://goo.gl/iIzf0A)).
The Government appropriately cautions that, in determining purpose, courts
should not look into the “veiled psyche” and “secret motives” of government
decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart
of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The
Government need not fear. The remarkable facts at issue here require no such
impermissible inquiry. For instance, there is nothing “veiled” about this press
release: “Donald J. Trump is calling for a total and complete shutdown of Muslims
entering the United States.” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for
President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7,
2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about
the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive
Order came to be. He said: “When [Mr. Trump] first announced
it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it legally.’”
SAC ¶ 59, Ex. 8. On February 21, 2017, commenting on the then-upcoming
revision to the Executive Order, the President’s Senior Adviser, Stephen Miller,
stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth
Circuit’s concerns in Washington,] you’re still going to have the same basic policy
outcome [as the first].” SAC ¶ 74.
These plainly-worded statements,14 made in the months leading up to and
contemporaneous with the signing of the Executive Order, and, in many cases, made
There are many more. See, e.g., Br. of The Roderick and Solange MacArthur Justice Center as
Amicus Curiae in Supp. of Pls.’ Mot. for TRO, ECF No. 204, at 19-20 (“It’s not unconstitutional
keeping people out, frankly, and until we get a hold of what’s going on. 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.”)
by the Executive himself, betray the Executive Order’s stated secular purpose. Any
reasonable, objective observer would conclude, as does the Court for purposes of the
instant Motion for TRO, that the stated secular purpose of the Executive Order is, at
the very least, “secondary to a religious objective” of temporarily suspending the
entry of Muslims. See McCreary, 545 U.S. at 864.15
To emphasize these points, Plaintiffs assert that the stated national security
reasons for the Executive Order are pretextual. Two examples of such pretext
include the security rationales set forth in Section 1(h):
“[I]n January 2013, two Iraqi nationals admitted to the United
States as refugees in 2009 were sentenced to 40 years and to life
in prison, respectively, for multiple terrorism-related offenses.”
[Exec. Order] § 1(h). “And in October 2014, a native of
Somalia who had been brought to the United States as a child
refugee and later became a naturalized United States citizen was
(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
ts-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/
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).
sentenced to 30 years in prison for attempting to use a weapon of
mass destruction[.]” Id. Iraq is no longer included in the ambit
of the travel ban, id., and the Order states that a waiver could be
granted for a foreign national that is a “young child.” Id.
TRO Mem. 13. Other indicia of pretext asserted by Plaintiffs include the delayed
timing of the Executive Order, which detracts from the national security urgency
claimed by the Administration, and the Executive Order’s focus on nationality,
which could have the paradoxical effect of “bar[ring] entry by a Syrian national who
has lived in Switzerland for decades, but not a Swiss national who has immigrated to
Syria during its civil war,” revealing a “gross mismatch between the [Executive]
Order’s ostensible purpose and its implementation and effects.” Pls.’ Reply 20
While these additional assertions certainly call the motivations behind the
Executive Order into greater question,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
See also Br. of T.A., a U.S. Resident of Yemeni Descent, as Amicus Curiae in Supp. of Pls.’ Mot.
for TRO, ECF No. 200, at 15-25 (detailing evidence contrary to the Executive Order’s national
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”).
Nor does the Court’s preliminary determination foreclose future Executive
action. As the Supreme Court noted in McCreary, in preliminarily enjoining the
third iteration of a Ten Commandments display, “we do not decide that the
[government’s] past actions forever taint any effort on their part to deal with the
subject matter.” McCreary, 545 U.S. at 873–74; see also Felix v. City of
Bloomfield, 841 F.3d 848, 863 (10th Cir. 2016) (“In other words, it is possible that a
government may begin with an impermissible purpose, or create an unconstitutional
effect, but later take affirmative actions to neutralize the endorsement message so
that “adherence to a religion [is not] relevant in any way to a person’s standing in the
political community.” (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984)
(O’Connor, J., concurring))). Here, it is not the case that the Administration’s past
conduct must forever taint any effort by it to address the security concerns of the
nation. Based upon the current record available, however, the Court cannot find the
actions taken during the interval between revoked Executive Order No. 13,769 and
the new Executive Order to be “genuine changes in constitutionally significant
conditions.” McCreary, 545 U.S. at 874.17 The Court recognizes that “purpose
needs to be taken seriously under the Establishment Clause and needs to be
understood in light of context; an implausible claim that governmental purpose has
changed should not carry the day in a court of law any more than in a head with
common sense.” Id. Yet, context may change during the course of litigation, and
the Court is prepared to respond accordingly.
Last, the Court emphasizes that its preliminary assessment rests on the
peculiar circumstances and specific historical record present here. Cf. Aziz, 2017
WL 580855, at *9 (“The Court’s conclusion rests on the highly particular ‘sequence
of events’ leading to this specific [Executive Order No. 13,769] and the dearth of
evidence indicating a national security purpose. The evidence in this record
focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani
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.
established between those statements and the [Executive Order].”) (citing
McCreary, 545 U.S. at 862).
Analysis of TRO Factors: Irreparable Harm
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)); see also Washington, 847 F.3d at 1169 (citing Melendres v.
Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the
deprivation of constitutional rights ‘unquestionably constitutes irreparable
injury.’”)) (additional citations omitted). 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.
Analysis of TRO Factors: The Balance of Equities and Public Interest
Weigh in Favor of Granting Emergency Relief
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. Here, the substantial controversy surrounding this Executive Order,
like its predecessor, illustrates that important public interests are implicated by each
party’s positions. See Washington, 847 F.3d at 1169. For example, the
Government insists that the Executive Order is intended “to protect the Nation from
terrorist activities by foreign nationals admitted to the United States[.]” Exec.
Order, preamble. National security is unquestionably important to the public at
large. Plaintiffs and the public, on the other hand, have a vested interest in the “free
flow of travel, in avoiding separation of families, and in freedom from
discrimination.” Washington, 847 F.3d at 1169–70.
As discussed above, Plaintiffs have shown a strong likelihood of succeeding
on their claim that the Executive Order violates First Amendment rights under the
Constitution. “[I]t is always in the public interest to prevent the violation of a
party’s constitutional rights.” Melendres, 695 F.3d at 1002 (emphasis added)
(citing Elrod, 427 U.S. at 373); Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir.
2013) (“[E]nforcement of an unconstitutional law is always contrary to the public
interest.” (citing Lamprecht v. FCC, 958 F.2d 382, 390 (D.C. Cir. 1992); G & V
Lounge v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).
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.
Based on the foregoing, Plaintiffs’ Motion for TRO is hereby GRANTED.
TEMPORARY RESTRAINING ORDER
It is hereby ADJUDGED, ORDERED, and DECREED that:
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. Enforcement of these provisions in all places, including the
United States, at all United States borders and ports of entry, and in the issuance of
visas is prohibited, pending further orders from this Court.
No security bond is required under Federal Rule of Civil Procedure 65(c).
The Court declines to stay this ruling or hold it in abeyance should an
emergency appeal of this order be filed.
Pursuant to Federal Rule of Civil Procedure 65(b)(2), the Court intends to set
an expedited hearing to determine whether this Temporary Restraining Order should
be extended. The parties shall submit a stipulated briefing and hearing schedule for
the Court’s approval forthwith.
IT IS SO ORDERED.
Dated: March 15, 2017 at Honolulu, Hawai‘i.
State of Hawaii, et al. v. Trump, et al.; CV 17-00050 DKW-KSC; ORDER
GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER
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