First in Hawaii, then Maryland – a pair of judges halted President Donald Trump’s revised travel ban before it could be enforced, slamming it for discriminating against Muslims and handing the administration another setback on a core campaign issue.
Decisions by federal judges Derrick Watson and Theodore Chuang blocked a 90-day ban on new visa approvals for people from six Muslim-majority nations. After Watson issued a temporary ban Wednesday on the entire order, Chuang reinforced the decision by halting enforcement of a single paragraph aimed at stopping the entry of nationals from Syria, Iran, Libya, Yemen, Somalia and Sudan.
The White House spent weeks crafting and carefully rolling out its March 6 order after other judges had swiftly rejected the first travel ban, which Trump announced with great fanfare days after taking office and which immediately spurred chaos at airports across the country. The decision to halt the policy before it could take effect Thursday will almost certainly be appealed – first to the same San Francisco appellate court that rejected the previous ban – and then to the US Supreme Court.
Once again, a judge cited Trump’s remarks on the campaign trail as an indication of his intent to keep Muslims out of the country. Watson, in Honolulu, pointed to the president’s plainly worded statements before the election, saying they “betray the executive order’s stated secular purpose,” while the real motive was “temporarily suspending the entry of Muslims.”
Trump, speaking at a rally in Nashville, said the travel restrictions were needed to protect Americans from “radical Islamic terrorists” and vowed to take the case all the way to the Supreme Court.
“This ruling makes us look weak, which by the way we no longer are,” Trump said. “We’re going to fight this terrible ruling.”
Chuang, in Greenbelt, Maryland, preemptively stated in his order that he would not overturn the decision in the event that an emergency appeal is filed by the government.
The US Justice Department believes Watson’s ruling is “flawed both in reasoning and in scope,” spokesperson Sarah Isgur Flores said in an emailed statement before Chuang’s second opinion. “The president’s executive order falls squarely within his lawful authority in seeking to protect our nation’s security.”
The administration argued that its revised order had none of the problems that torpedoed the first mandate. That one, which caught many in Trump’s own administration by surprise, hadn’t been vetted by lawyers and homeland security officials, and was so broad it ensnared green card holders and others who had long been in the country legally. Administration lawyers have also noted that the new order eliminated all preferences for religious minorities.
In its appeal, which could come quickly, the administration will argue that the president has broad power over immigration and that the new order focused on people who aren’t yet in the US.
Democratic state attorneys general and immigrant-rights groups have led the charge to block Trump’s revised order, while his supporters contended Congress affords the president in dealing with matters of immigration and national security. The new order would have temporarily blocked visa approvals for immigrants from the six countries, as well as suspending refugee programs for 120 days.
The two jurists were among three across the US who spent Wednesday weighing whether to impose a temporary halt on the president’s second travel ban. A federal judge in Seattle, who blocked Trump’s initial order earlier this year, said he would issue a written order after holding a hearing on the issue.
“Great news,” Washington Attorney General Bob Ferguson said when he learned of the Hawaii ruling. Ferguson’s office stymied Trump’s original Janaury 27 ban in court and is challenging the revised ban in one of the two Seattle cases with the backing of California, New York and other states.
Lawyers in all four cases made the same fundamental argument: Trump as a presidential candidate and his surrogates during the past 18 months were explicit in saying they wanted to bar Muslim immigrants and require those already in the US to register with the authorities.
US Justice Department lawyers argued in all three courtrooms Wednesday that the revised order eliminated any concern the policy could unfairly harm permanent residents with green cards or people who already had visas. It also eliminated a provision that critics said would have favoured Christians over Muslims.
Watson, appointed by Democratic President Barack Obama, sided with opponents, dismissing the Justice Department’s contention the travel restrictions were constitutional because they only applied to some countries. Revisions to the order weren’t enough to convince him that the ban was free of religious discrimination.
“The illogic of the government’s contentions is palpable,” Watson said. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
From July 2015 to December 2016, Trump made almost a dozen references to a Muslim ban or registry as he emerged as the Republican party’s nominee and ultimately president, according to Hawaii Attorney General Doug Chin’s complaint.
“This decision reinforces our argument which is that no president can issue an order that discriminates against people based on upon their national origin or their religion,” Chin said. “We’re very pleased with the result. We know this is just a first step.”
To block the Trump policy on a longer-term basis, opponents will have to provide more comprehensive evidence that the ban violates the Constitution. Opponents contend the policy violates the First Amendment, Fifth Amendment and the US Immigration and Nationality Act, saying the president’s order attacks individuals’ rights to religious freedom without persecution or discrimination, and to equal protection.
By exempting green card holders and people with valid visas, the Trump administration hoped to cut out those with the strongest due process claims. That left Hawaii to focus primarily on the question of whether the order unconstitutionally disfavors Islam.
The US Court of Appeals in San Francisco didn’t decide whether the original order illegally discriminated against Muslims, though it said the states had raised “serious allegations” and presented “significant constitutional questions.” The court did say that evidence of the intent behind the order could be considered. Judge Watson did just that, considering the statements by Trump and others connected to the order, finding that a reasonable person would conclude it “was issued with a purpose to disfavour a particular religion.”
“I think it is a very careful and thorough analysis,” said Erwin Chemerinsky, law school dean at the University of California, Irvine. “The judge details why, like the previous executive order, this is discrimination based on religion in violation of the First Amendment.”
Still, the ruling is only temporary and the dispute could drag on in court before a trial on the constitutionality of the travel ban takes place, said Stephen Wasby, a legal scholar at the State University of New York in Albany. Trump’s best hope may be a fast confirmation of his Supreme Court nominee, appeals court Judge Neil Gorsuch, in the likely event that the travel ban fight reaches the nation’s top court, he said.
“This is just the beginning of a long process,” Wasby said, adding that Watson was “brutal” in his rejection of Trump’s defense.
Josh Blackman, an associate professor at the South Texas School of Law in Houston, disagreed with Watson’s rejection of the argument that “past conduct must forever taint any effort” by Trump to address the nation’s security concerns tied to immigration. He said Watson’s analysis, based on parsing statements of Trump and his surrogates on cable news, was better suited for “fact checkers” than federal judges.
“It is hard to see how his analysis would ever permit the executive branch to impose any immigration policy that has any effect on predominantly Muslim countries – no matter how small,” Blackman said.
Five judges of the San Francisco appeals court on Wednesday objected to their colleagues’ decision not to have a larger panel review the decision upholding the ban on the first Trump order. The five, all appointed by Republican presidents, said in a filing that the court failed in its responsibility to “correct our own errors.”
“Whatever we, as individuals, may feel about the president or the executive order, the president’s decision was well within the powers of the presidency,” the group said.
The cases are is State of Hawaii v. Trump, 17-cv-00050, U.S. District Court, District of Hawaii (Honolulu), International Refugee Assistance Project v. Trump, 17-0361, U.S. District Court of Maryland.