Just hours before it was set to go into effect, the revised version of President Trump’s Executive Order purporting to block most travel from six predominantly Muslim nations has been blocked by two Federal District Court Judges literally on opposite sides of the country. The first ruling came late yesterday afternoon from a Federal District Court Judge in Hawaii who ruled on a lawsuit filed by the State of Hawaii, and the second came hours later from a Federal Judge in Maryland ruling in a case brought by a refugee assistance organization:
A federal judge in Hawaii issued a nationwide order Wednesday evening blocking President Trump’s ban on travel from parts of the Muslim world, dealing a stinging blow to the White House and signaling that Mr. Trump will have to account in court for his heated rhetoric about Islam.
A second federal judge in Maryland ruled against Mr. Trump overnight, with a separate order forbidding the core provision of the travel ban from going into effect.
The rulings were a second major setback for Mr. Trump in his pursuit of a policy that he has trumpeted as critical for national security. His first attempt to sharply limit travel from a handful of predominantly Muslim countries ended in a courtroom fiasco last month, when a federal court in Seattle halted it.
Mr. Trump issued a new and narrower travel ban, affecting six countries, on March 6, trying to satisfy the courts by removing some of the most contentious elements of the original version.
But in a pointed decision that repeatedly invoked Mr. Trump’s public comments, Judge Derrick K. Watson, of Federal District Court in Honolulu, wrote that a “reasonable, objective observer” would view even the new order as “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.”
In Maryland, Judge Theodore D. Chuang echoed that conclusion hours later, ruling in a case brought by nonprofit groups that work with refugees and immigrants, that the likely purpose of the executive order was “the effectuation of the proposed Muslim ban” that Mr. Trump pledged to enact as a presidential candidate.
Mr. Trump lashed out at Judge Watson during a campaign-style rally in Nashville late on Wednesday. Raising his voice to a hoarse shout, Mr. Trump accused the judge of ruling “for political reasons” and criticized the United States Court of Appeals for the Ninth Circuit, which upheld the earlier decision against his administration and will hear any appeal to the Hawaii ruling.
“This ruling makes us look weak, which by the way we no longer are, believe me,” Mr. Trump said, to mounting cheers from a loyal crowd.
Mr. Trump even said he might reissue the initial version of the order, rather than the one blocked on Wednesday, which he described as “a watered-down version of the first one.”
After he signed the revised ban, Democratic attorneys general and nonprofit groups that work with immigrants and refugees raced back into court, claiming that Mr. Trump’s updated decree was still a thinly veiled version of the ban on Muslim migration that he proposed last year.
Judge Watson, who was appointed by President Barack Obama, ruled that the State of Hawaii and an individual plaintiff, Ismail Elshikh, the imam of the Muslim Association of Hawaii, had reasonable grounds to challenge the order as religious discrimination. And he concluded that allowing the travel restrictions to go into effect at midnight, as scheduled, could have caused them irreparable harm.
Judge Watson flatly rejected the government’s argument that a court would have to investigate Mr. Trump’s “veiled psyche” to deduce religious animus. He quoted extensively from the remarks by Mr. Trump that were cited in the lawsuit brought by Hawaii’s attorney general, Doug Chin.
“For instance, there is nothing ‘veiled’ about this press release,” Judge Watson wrote, quoting a Trump campaign document titled “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
Judge Watson singled out Mr. Elshikh, an American citizen whose Syrian mother-in-law had been pursuing a visa to enter the United States, as having an especially strong claim that the travel regulations would harm him on the basis of his religion.
“This is a great day for democracy, religious and human rights,” Mr. Elshikh, who was out of the country, said in a message relayed through Hakim Ouansafi, the chairman of the Muslim Association of Hawaii. “I am very pleased that the processing of my mother-in-law’s paperwork will not stop now but more importantly that this Muslim ban will not separate families and loved ones just because they happen to be from the six countries.”
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In the Maryland case, Judge Chuang, who was also appointed by Mr. Obama, declined to block the entire executive order from going into effect, but ruled that the most important section — banning travel from half a dozen countries — could not be enforced. His decision cited Mr. Trump’s public comments to conclude that there were “strong indications that the national security purpose is not the primary purpose for the travel ban,” and that Mr. Trump may have intended to violate the constitutional prohibition on religious preferences.
In addition to the Hawaii and Maryland suits, a federal judge in Washington State heard arguments Wednesday in cases challenging the constitutionality of Mr. Trump’s order, including one brought by a coalition of Democratic attorneys general, and another by nonprofit groups.
Administration lawyers have argued that the president was merely exercising his national security powers. In the scramble to defend the executive order, a single lawyer in the United States solicitor general’s office, Jeffrey Wall, argued first to a Maryland court and then, by phone, to Judge Watson in Honolulu that no element of the order, as written, could be construed as a religious test for travelers.
Mr. Wall said the order was based on concerns raised by the Obama administration in its move toward stricter screening of travelers from the six countries affected.
“What the order does is a step beyond what the previous administration did, but it’s on the same basis,” Mr. Wall said in the Maryland hearing.
After Mr. Trump’s speech in Nashville, the Justice Department released a more muted statement disputing the Hawaii decision, calling it “flawed both in reasoning and scope.” Sarah Isgur Flores, a spokeswoman for the department, said it would continue to defend the legality of the presidential order.
While the Maryland ruling doesn’t go quite as far as the Hawaii ruling, both Judges reached essentially the same conclusion regarding the second travel ban that Seattle-based Federal District Court Judge James Robart, who was later upheld by the Ninth Circuit Court of Appeals, did when he issued the very most sweeping ruling blocking the first draft of the Executive Order that the Trump Administration ultimately withdrew and reissued in its revised form that was allegedly intended to fix the problems that Robart and several other Federal Judges had found in the original order. Principally, this consisted of exempting Permanent Residents and people who already had visas from the travel restrictions as well as dropping Iraq from the list of countries from which travel was banned. The second change, of course, was meant more to address the complaint that the order had the impact of harming people who had helped the United States military during the Iraq War and placing them in danger of retaliation from insurgent groups or from ISIS. When it released the revised order, the Administration insisted that this version dealt with any potential legal problems that the first order may have had, and predicted that it would be upheld in Court just as assuredly as the first one was struck down. As it turned out, their changes proved to be woefully inadequate, and the order seems to continue to have serious constitutional and legal problems that may be impossible for the Administration to address given the clear evidence of the discriminatory intent behind the order, and the fact that statements from both the White House and Trump adviser that the order as written was meant to be the most realistic implementation possible of the worldwide Muslim ban initially announced by then candidate Trump in the middle of the race for the Republican nomination for President.4
Both orders are built on similar grounds, and reach similar conclusions, to those laid out by Judge Robart and the Ninth Circuit in their rejection of the original order. They find, for example, that the Order clearly and unconstitutionally discriminates on the basis of religion in violation of the First Amendment by singling out majority Muslim nations for a ban that simply cannot be supported by the evidence. Both orders also rely heavily on rhetoric we heard from Trump during the campaign, and on statements made by the Administration and Trump surrogates such as Rudy Giuliani that the motivation behind the ban was to come as close as possible to a total ban on Muslims without violating the law. Combined with the fact that the Administration apparently continues to be unable to provide sufficient evidence to support the contention that these six nations represent a security threat to the United States, was seemingly enough to convince Judge Watson and Judge Chaung, both appointed by President Obama, that the order cannot withstand review even on the relatively limited basis needed to pass muster under the analysis utilized for a Temporary Restraining Order.
From here, the case will follow a familiar path. Judge Watson’s ruling, of course, would be appealed to the Ninth Circuit Court of Appeals, where is likely faces a difficult future. While it’s unlikely that this order will draw the same panel as the initial order did, the fact of the matter is that the Ninth Circuit is still predominantly made up of Judges appointed by Democratic Judges. Thus, the odds are that the panel that the case draws will be a skeptical one at best, especially given the guidance of the ruling by the previous panel which, while not necessarily binding precedent, the court’s ruling in that case will most assuredly stand as persuasive authority for the panel that hears the newest appeal. The Maryland case, meanwhile, would be appealed to the Fourth Circuit Court of Appeals. This court is a bit harder to read on issues like this, and the outcome is likely to depend heavily on the makeup of the panel that the case draws, but given the rulings that have come from this court in the past on immigration-related issues I would not be optimistic if I were with the Trump Administration. In any case, this all guarantees that the ban will remain on hold for the next several weeks at least, and perhaps appreciably longer, and that’s what really matters.
Here’s the ruling in the Hawaii case:
Hawaii et al v. Trump et al Opinion by Doug Mataconis on Scribd
And here’s the ruling in the Maryland case:
IRAP et al v. Trump et al by Doug Mataconis on Scribd
