As detailed in our previous alert on this issue, several states reacted quickly to the Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States issued on March 6, 2017, (the “new E.O.”). Because of judicial rulings in cases filed by these states, the new E.O. did not take effect on March 16, 2017, as originally scheduled.

The District Court of Hawaii Enters Nationwide Temporary Restraining Order

On March 15, 2017, one day before the new E.O. was scheduled to take effect, the United States District Court for the District of Hawaii entered a nationwide temporary restraining order that enjoins the United States Government from enforcing or implementing Sections 2 and 6 of the new E.O.

The court concluded that:

  1. plaintiffs met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim;
  2. irreparable injury would be likely if the court did not grant the requested relief; and
  3. the balance of the equities and public interest weighed in favor of granting the temporary restraining order.

The court determined that in spite of the new E.O.’s stated religiously-neutral text, it is questionable whether the new E.O. meets the constitutional requirement that government actions have a “primary secular purpose.”

The court intends to set an expedited hearing to determine whether the temporary restraining order should be extended.

This ruling comes as a victory to the group of 58 technology companies and other businesses that filed an amicus brief in support of the state of Hawaii, asserting that the suspension would inflict significant and irreparable harm on United States businesses and their employees.

The District Court of Maryland Issues a Preliminary Injunction Against the 90-day Travel Suspension

On March 16, 2017, hours after the Hawaii ruling was issued, a federal judge in Maryland issued a preliminary injunction against Section 2 of the new E.O. on the grounds that the 90-day suspension may have been designed to violate the constitutional freedom of religion. Specifically citing the President’s public comments, the court concluded that there were “strong indications that the [stated] national security purpose is not the primary purpose for the travel ban” (emphasis added). The court’s preliminary injunction will last until a trial on the merits of the case is completed.

The New E.O. Will Likely Be Subject to Additional Judicial Review

The White House Press Secretary has confirmed, and other reports indicate, that the United States Government intends to appeal both decisions to the applicable federal Courts of Appeals, with the first appeal being of the Maryland decision to the United States Court of Appeals for the Fourth Circuit.

In addition to the suits in Hawaii and Maryland, the United States District Court for the Western District of Washington heard arguments on March 15, 2017, relating to the constitutionality of the new E.O. On March 16, 2017, that court declined to extend its injunction on Executive Order 13769 (the prior Executive Order) to the travel suspensions under the new E.O. Specifically, the court stayed its determination of the plaintiffs’ Emergency Motion for a Temporary Restraining Order, indicating that that it would waste judicial resources to decide the legal arguments raised by the plaintiffs when there will be forthcoming guidance on these issues from the United States Court of Appeals for the Ninth Circuit.