President Trump’s second attempt at a “travel ban” was supposed to go into effect Thursday. Instead, the central components of the executive order have been blocked by judges on opposite sides of the country.
In both cases, the judges relied heavily on public statements from Trump and his advisers to conclude that the order — despite being “facially” neutral on religion — was designed to target Muslims.
As we’ve reported, the order would deny entry to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days and suspend the U.S refugee program for 120 days. (Iraqi citizens, people who already have visas and refugees whose travel plans were already finalized were all exempted from this order — although they were barred under the first version of the travel ban.)
The first order prompted chaos, and advocates say the second does little to alleviate fear and uncertainly.
The original ban was blocked by a federal court, and an appeals court stood behind the lower court’s decision. The new version was supposed to address the courts’ objections.
But judges in Hawaii and Maryland — ruling on cases originally filed against the first order — found that the changes didn’t address the underlying concerns and blocked it, too, from going into effect. A third court, in Washington state, also heard arguments Wednesday.
From Hawaii: a broad, temporary order
On Wednesday night, a federal judge in Hawaii blocked the ban on citizens from the six countries, as well the suspension of the refugee program. He imposed a temporary restraining order, a short-term measure meant to prevent irreparable harm while court proceedings move forward.
U.S. District Court Judge Derrick K. Watson leaned heavily on public statements by Trump and his advisers to determine that “a reasonable, objective observer” would conclude that the order targeted Muslims.
The judge determined that Trump wasn’t even subtle about his actual intent, writing:
“The Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decisionmakers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts.’ …
“The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’ ”
Watson notes that Trump later said he changed to “talking territory instead of Muslim,” because “people were so upset when I used the word Muslim.” And former New York Mayor and Trump adviser Rudy Giuliani, discussing the first executive order, said Trump had asked about finding a way to impose a Muslim ban “legally.”
And there were several other examples in the full court decision.
In short, Watson found, there was “significant and unrebutted evidence of religious animus” driving the executive order.
In a statement responding to the Hawaii ruling, the Justice Department called it “flawed both in reasoning and in scope.”
And at a rally Wednesday night in Nashville, Tenn., Trump said he thought his administration ought to return to the original ruling — not the “watered down” second version — and “go all the way” to the Supreme Court.
From Maryland: a narrower injunction
In a decision published early Thursday, a federal judge in Maryland blocked just one element of the travel ban — the section affecting citizens of the six countries. He didn’t interfere in the order’s suspension of the refugee program, despite the plaintiffs’ request.
That judge, Theodore D. Chuang, issued a preliminary injunction — a more permanent way of blocking the measure, which could last longer than the restraining order issued by Hawaii.
Like Watson, Chuang also listed public statements from Trump and his advisers about a “Muslim ban.” There’s no reason to disregard those statements when analyzing the order, he said — since court precedent holds that “the world is not made brand new every morning” and “reasonable observers have reasonable memories.” (This appears to be a response to arguments that the court ought not to consider Trump’s pre-inauguration rhetoric.)
He also directly challenged the Trump administration’s claim that the ban was primarily driven by national security interests.
Chuang writes that, as the Trump administration has repeatedly emphasized, courts should generally defer to the executive branch on national security judgments. But he says there are “strong indications” that any such concerns were secondary to religious bias.
After all, he reasoned, if security concerns were central, wouldn’t Trump have conferred with “the relevant national security agencies” before passing the original ban, instead of after?
The travel ban “bears no resemblance” to any other government response to a national security risk. But it “bears a clear resemblance” to Trump’s descriptions of how he would enact a Muslim ban, Chuang writes.
The White House has not yet responded to Chuang’s decision.
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