2nd judge blocks Trump travel ban
President’s own words show it’s meant to discriminate, jurist in Maryland says
A second federal judge issued a restraining order Thursday blocking enforcement of one of the critical sections of President Donald Trump’s revised travel ban, using Trump’s own comments against him in deciding the ban was likely to run afoul of the Constitution.
The decision from U.S. District Judge Theodore Chuang in federal court in Greenbelt, Md., marks another win for challengers of the president’s executive order, which had been set to take effect at 12:01 a.m. Thursday. Earlier, a different federal judge in Hawaii stopped it.
Chuang’s order did not sweep as broadly as the one in Hawaii, but he similarly declared that even the revised travel ban was intended to discriminate against Muslims. He said those wanting evidence of anti-Muslim intent need look no further than what the president has said about it.
Chuang’s ruling won’t upend or call into question the decision in Hawaii, instead offering some measure of reinforcement.
“The history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban,” wrote Chuang, an appointee of President Barack Obama.
The Justice Department had said that it strongly disagreed with the ruling in the Hawaii case, and that the executive order Trump issued
“falls squarely within his lawful authority in seeking to protect our nation’s security.”
Sarah Isgur Flores, a spokesman for the department, said it would continue to defend the legality of the presidential order.
The case in Maryland was filed by three organizations and six people, claiming the order affected their work or prevented their family members from the affected countries from getting visas to enter the United States.
Chuang blocked only the provision of the new order affecting the issuance of visas to those from the six affected countries. He said those suing had “not provided a sufficient basis” for him to declare the other sections invalid.
The Maryland ruling took the form of a preliminary injunction, which will remain in effect indefinitely as the case is litigated.
“Unless and until the president realizes that this is a battle in which he’s going to keep losing and decides to do the right thing and abandon this course, for as long as he’s on it we’ll keep litigating it and I think we’re going to keep winning,” said Omar Jadwat, who argued the case for the American Civil Liberties Union in Maryland.
Chuang wrote that the plaintiffs didn’t sufficiently develop their argument that a temporary ban on refugees discriminates on the basis of religion. Plaintiffs in the Maryland case also had sought to stop a portion of the order that would reduce the number of refugees allowed to enter the country this fiscal year from 110,000 to 50,000.
Still, the judge’s order is hugely meaningful for many plaintiffs, including a man in Texas whose same-sex fiance is seeking a visa to enter the United States from Iran, said Justin Cox, an attorney with the National Immigration Law Center who also argued the Maryland case.
“This Muslim ban was threatening to either separate or continue to separate families who’ve already been separated
for months and years,” Cox said. “It has real-world consequences and we were obviously very glad to see that Judge Chuang recognized those and rejected the government’s frankly callous argument that our clients have already been waiting and another few months couldn’t possibly be irreparable.”
WHAT NEXT?
The government’s next legal step is unclear.
At a rally Wednesday in Nashville, Tenn., Trump said he was prepared to take the case to the Supreme Court. He also mused a return to his original executive order, which imposed a more sweeping ban than the second.
“This ruling makes us look weak, which by the way we no longer are, believe me,” Trump said.
White House spokesman Sean Spicer said Thursday that the ban is lawful and suggested that the judges were overstepping their authority.
“I think for a judge to ignore that statute and talk about tweets or interpreting something that happened during the campaign trail is not in keeping with how they’re supposed to interpret the law,” Spicer said. “We tailored that second executive order to comply with the judge’s order.”
The first order temporarily barred entry for citizens of seven Muslim-majority countries and suspended the U.S. refugee program. When it was implemented, the State Department provisionally revoked tens of thousands of visas, and some travelers affected while in transit were detained and deported from U.S. airports.
Officials had hoped the revised version would be more defensible in court. It reduced the list of countries affected to six — removing Iraq, while keeping Iran, Somalia, Sudan, Libya, Yemen and Syria. It also applied only to those seeking new visas, and spelled out a robust list of those who might be exempted. The new order maintained the suspension of the refugee program.
On Wednesday, with the order set to go into effect in just hours, federal judges in three states heard urgent challenges to the measure.
In Hawaii, U.S. District Judge Derrick Watson, another Obama appointee, had gone further, also suspending the portion of the order that affected refugees.
His ruling will be undisturbed by Chuang’s, and appeals courts would ultimately have to decide to what extent each of them was right.
If the administration appeals Watson’s decision at the 9th Circuit level, the matter likely would be heard by different judges from the three who ruled on the case last month. The panel of judges assigned to such cases rotates every month, court spokesman David Madden said.
Justice Department lawyers had argued the ban was necessary for national security. As evidence to support their claim, they pointed to a request from the U.S. attorney general and homeland security secretary — penned March 6, after the first ban had been frozen — asking for the measure. They also pointed to more than 300 people who they said entered the U.S. as refugees and were the subjects of counterterrorism investigations.
Chuang wrote that he “should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban,” but if the national security rationale was secondary to an attempt to disfavor a particular religion, he had no choice but to block the executive order.
“In this highly unique case,” he wrote, “the record provides strong indications that the national security purpose is not the primary purpose for the travel ban.”
The same federal district judge in Washington who blocked Trump’s first travel ban also is considering challenges to the new one.
In all, more than a half dozen states are trying to stop the ban.
EFFECTIVENESS QUESTIONED
As the White House defends the ban, several officials said the Trump administration had amassed at least two sets of internal data — which have never been made public — that show the travel ban is not likely to be effective in curbing the threat of terrorism in the United States.
One internal report, titled “Most Foreign-Born US-Based Violent Extremists Radicalized After Entering Homeland,” analyzed roughly 90 cases of suspected or confirmed foreign-born terrorists, finding that most of them embraced extremist ideology after they arrived in the United States, not before.
Another report, drawn on classified FBI data, has been used by the Trump administration to bolster its claims that refugees pose a risk of terrorism. But the figures that are the basis for that report undermine a key premise of the travel ban because most of the suspects cited in the report came from countries unaffected by Trump’s executive order, according to officials familiar with the report.
White House spokesman Michael Short said the justification for the travel ban is “not in any way diminished by these selective and potentially criminal leaks being carried out by disgruntled government officials. The president is 100 percent committed to keeping this country safe from terrorism and that’s exactly what this order will help achieve.”
A Department of Homeland Security spokesman defended the travel ban executive order, saying it is a prudent response to security concerns about six countries “where state-sponsored terror and unstable governments make thorough investigation difficult.” The Justice Department declined to comment on the reports.