Late on March 15, 2017, the United States District Court for the District of Hawaii issued a nationwide temporary restraining order ("TRO") in Hawaii v. Trump ("Hawaii"), prohibiting the government from implementing Sections 2 and 6 of the March 6, 2017 Executive Order, titled "Protecting the Nation From Foreign Terrorist Entry into the United States" ("Order"), pending further litigation. Section 2 of the Order prohibits foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (together, the "designated countries") from entering the United States for a period of at least 90 days. Section 6 suspends the U.S. Refugee Admissions Program for 120 days and reduces the number of refugees the U.S. will accept in 2017 from 110,000 to 50,000. Our summary of the Order is available here.
The Order revises and replaces the January 27, 2016 Executive Order 13769 ("Previous Order"), which contained a similar limitation on travel for nationals from the designated countries as well as Iraq. The Previous Order was also subject to a TRO by the courts.
In granting this new TRO, the Hawaii court concluded that the plaintiffs were likely to succeed on the merits of their Establishment Clause claim. At its core, the Establishment Clause of the U.S. Constitution prohibits the U.S. government from officially preferring one religion over another. The court examined statements made by President Trump and senior administration officials prior to and at the time of the release of the Order and concluded for purposes of the TRO motion that "a reasonable, objective observer ... would conclude that the [Order] was issued with a purpose to disfavor a particular religion." The court further concluded that revisions made by the Trump Administration between the Previous Order and the Order did not cure the Establishment Clause problems presented by the Previous Order. President Trump said he will appeal the ruling.
The TRO does not enjoin the Order's other provisions, including the mandate to expedite implementation of an entry-exit tracking system or the suspension of the Visa Interview Waiver Program. This would not stop the Visa Waiver program (ESTA), but would close the opportunity for certain nationals to apply for a visa without an interview.
On March 16, 2017, in the case of International Refugee Assistance Project v. Trump ("IRAP"), the United States District Court for the District of Maryland also held that the plaintiffs were substantially likely to succeed on the merits of their Establishment Clause claim and issued a TRO. The IRAP TRO, however, was narrower than the TRO issued in Hawaii. This ruling blocked implementation of Section 2 only.
As litigation continues, and the limitation on travel is only temporarily lifted, we advise foreign nationals from the designated countries to avoid unnecessary travel.