Administration to appeal travel ban ruling
WASHINGTON — The Trump administration filed court papers Friday hoping to salvage its second version of a travel ban after two judges in separate cases this week found that it probably violated the Constitution.
The Justice Department filed papers in federal court in Maryland, setting up a new legal showdown in the U.S. Court of Appeals for the 4th Circuit, located in Richmond, Virginia.
This week, federal judges in Hawaii and Maryland issued orders against the travel ban, finding that it violated the First Amendment by disfavoring a particular religion. If the Justice Department had appealed the Hawaii order, the case would have gone to the same San Francisco-based appeals court that rejected an earlier version of the travel ban.
William Jay, a former Justice Department lawyer specializing in appellate cases, said the government may have a very simple reason for challenging the Maryland case first: The judge there issued a preliminary injunction, which is more easily appealed in federal courts than temporary restraining orders like the one issued in Hawaii.
There may be another strategic reason to challenge the Maryland case first, said University of Richmond law professor Kevin Walsh.
In Richmond, Walsh said, “the government has the benefit of a fresh set of eyes, unclouded by a precedent of the prior order.”
He added that a ruling reversing the Maryland injunction could “cast doubt on the enforceability in the 4th Circuit of the Hawaii judge’s order that purports to reach nationwide.’’
But Walsh cautioned that if the administration were to win its case in Richmond, that could, at least in theory, set up a confusing situation in which the travel ban was enforced in one part of the country but not another.
Critics of the executive order call it an attempt to fulfill President Donald Trump’s campaign promise to temporarily ban Muslims from entering the United States. The administration denies it is a Muslim ban and says the order aims to prevent terrorism by blocking visitors from terror-prone countries where screening of individuals seeking U.S. visas may not be effective.