Using Trump’s words against him
Donald Trump’s second attempt at instituting a travel ban targeting travelers from several Muslim nations suffered back-to-back blows in two federal courts, with judges in Hawaii and Maryland using the president’s own words against him when striking it down.
Trump’s executive order — which would have closed the nation’s borders to travelers from Iran, Libya, Syria, Somalia, Sudan, and Yemen for 90 days and turned away refugees indefinitely — was due to go into effect Thursday.
But on Wednesday, a federal judge in Hawaii issued a nationwide restraining order blocking enforcement of the ban. The state of Hawaii had sued the government, claiming that the ban specifically targets its Muslim residents.
In his decision, Judge Derrick Watson invoked Trump’s own campaign promises — in 2015, then-candidate Trump suggested barring all Muslims from the country — and said that the “reasonable, objective observer” would see the order as disfavoring Muslims. Trump’s anti-Muslim campaign rhetoric was essentially proof of “religious animus,” he wrote.
He also pointed to Trump adviser Stephen Miller’s suggestion that the new travel ban would have “basically the same policy outcome” of the previous ban, which was struck down in court. The comment showed that the new travel ban, like the first, “betrays” its “stated secular purpose,” added Watson.
Early Thursday, a judge in Maryland ruled against the order after a coalition of nonprofit groups that advocate for immigrants and refugees also argued that the underlying purpose of the ban was to discriminate against Muslims.
Judge Theodore Chuang issued a preliminary injunction, which is less robust than the Hawaiian order and only blocks the provision that affects visas from the six Muslim nations. He, too, pointed to Trump’s 2015 suggestion to ban all Muslims in his decision.
The new executive order is “the effectuation of the proposed Muslim ban,” he wrote.
A third case against the ban unfolded Wednesday in Washington state, where Seattle-based federal judge James Robart — who blocked Trump’s first travel ban in February — heard arguments from immigrants who claim the ban keeps them separated from their families overseas. Robart has not yet ruled.
The first draft vs. the revision
The newly blocked executive order was designed to be harder to challenge in court after Trump’s first ordered travel ban faced a slew of lawsuits and was eventually blocked by a federal judge.
Trump billed the first executive order as an anti-terrorism measure and signed it on Jan. 27, just one week after he took office. It immediately barred citizens from seven Muslim majority countries — Iran, Iraq, Libya, Syria, Somalia, Sudan, and Yemen — from entering the country for 90 days. It also shuttered the U.S.’s refugee program by banning asylum-seekers from Syria indefinitely and refugees from every other country for 120 days.
The ban caused chaos and confusion at the nation’s airports: Travelers from the seven newly banned countries — some of whom were already en route when the order was signed — were detained when they landed and protesters rallied outside.
Some of the detained travelers were green card holders, meaning that, while they hold passports from foreign countries, they had legal status to work and live in the U.S. Most of the trapped travelers were eventually allowed to enter the U.S., although at least one family, Christians, was sent back to Syria.
At least two dozen lawsuits were filed against that first travel ban. Robart, the Seattle judge, acted on one of those suits on Feb. 3, issuing a nationwide restraining order prohibiting federal agents from enforcing the ban. When the Trump administration challenged the decision, an appeals court refused to reinstate the ban.
So the administration unveiled a new travel ban on March 6, which included a special provision to exempt green card holders. Legal experts said that the new order would likely hold up better in court since it ensured that legal U.S. residents wouldn’t be affected. The new order also removed Iraq from the ban list (the White House cited the nation’s key role in helping the U.S. fight the militant group ISIS) and removed the language putting extra restrictions on Syrian refugees.
‘See you in court’?
Following the Hawaiian judge’s restraining order, Trump vowed to appeal his case to a higher court in an attempt to implement the now-stalled travel ban.
“We’re going to fight this terrible rule,” he said at a campaign-style rally in Tennessee. “We’re going to take this case as far as it will go, including the Supreme Court. We’re going to win.”
He had previously promised to take his failed first ban to the highest court, tweeting “SEE YOU IN COURT” after an appeals court struck it down, but instead issued the revised executive order.
To challenge the Hawaii and Maryland judges’ orders, the Trump administration and the Justice Department can either appeal directly to the Supreme Court or ask an appellate court to take the case.
If they go the appeals route, the Hawaiian case would head to the 9th Circuit based in San Francisco — the same court that upheld Robart’s decision to block the first ban — so that option may not be the most palatable for team Trump. The Maryland case would head to the 4th Circuit in Richmond, Va.
The Robart decision — which was still pending as of Thursday morning — could also add an extra legal challenge to the mix. If the Seattle judge again blocks the travel ban, the Trump administration would then have three separate cases to fight.