Last week, the U.S. Supreme Court dismissed and remanded to the 4th Circuit Court of Appeals the legal challenge to President Trump’s March 6 executive order, i.e., the “Muslim travel ban.” The court gave instructions to dismiss the case as moot – that is, no longer a live controversy, because the part of the ban challenged expired during the pendency of the appeal. The justices did not act on Trump v. Hawaii, the challenge that it had agreed to review along with the Fourth Circuit case last June. The Hawaii case challenges a provision of the March 6 order that is still in effect, but will expire later this month (this means that the justices could also dismiss this case). Justices end 4th Circuit travel-ban challenge (SCOTUSblog).
The Trump administration issued a third iteration of its travel ban during the pendency of these appeals at the Supreme Court.
The third iteration of the Trump administration’s Muslim travel ban took strike three looking yesterday (it is baseball playoffs season) in the U.S. District Court for Hawaii, again. Federal judge blocks Trump’s third travel ban:
A federal judge on Tuesday largely blocked the Trump administration from implementing the latest version of the president’s controversial travel ban, setting up yet another legal showdown on the extent of the executive branch’s powers when it comes to setting immigration policy.
The decision from U.S. District Judge Derrick K. Watson in Hawaii is sure to be appealed, but for now, it means that the administration cannot restrict the entry of travelers from six of the eight countries that officials said were unable or unwilling to provide information that the United States wanted to vet the countries’ citizens.
The latest ban was set to go fully into effect in the early hours of Wednesday, barring various types of travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Watson’s order stops it, at least temporarily, with respect to all the countries except North Korea and Venezuela.
In a 40-page decision granting the state of Hawaii’s request for a temporary restraining order nationwide, Watson wrote that the latest ban “suffers from precisely the same maladies as its predecessor.”
Watson also wrote that the executive order “plainly discriminates based on nationality” in a way that is opposed to federal law and “the founding principles of this Nation.”
The state of Hawaii, the International Refugee Assistance Project and others who sued over the March travel ban asked judges to block the new one in federal courts in Hawaii, Washington state and Maryland. They argued that Trump had exceeded his legal authority to set immigration policy and that the latest measure — like the last two — fulfilled his unconstitutional campaign promise to implement a Muslim ban. As of Tuesday afternoon, the judges in Maryland and Washington state had yet to rule, although arguments in Washington are scheduled for Oct. 30.
This morning, the U.S. District Court for Maryland weighed in, also ruling against the third iteration of the Trump administration’s Muslim travel ban. Second judge rules against latest travel ban, saying Trump’s own words show it was aimed at Muslims:
A federal judge in Maryland early Wednesday issued a second halt on the latest version of President Trump’s travel ban, asserting that the president’s own comments on the campaign trail and on Twitter convinced him that the directive was akin to an unconstitutional Muslim ban.
U.S. District Judge Theodore D. Chuang issued a somewhat less complete halt on the ban than his counterpart in Hawaii did a day earlier, blocking the administration from enforcing the directive only on those who lacked a “bona fide” relationship with a person or entity in the United States, such as family members or some type of professional or other engagement in the United States.
But in some ways, Chuang’s ruling was more personally cutting to Trump, as he said the president’s own words cast his latest attempt to impose a travel blockade as the “inextricable re-animation of the twice-enjoined Muslim ban.”
Omar Jadwat, who directs of the ACLU’s Immigrants’ Rights Project and represented those suing in Maryland over the ban, said: “Like the two versions before it, President Trump’s latest travel ban is still a Muslim ban at its core. And like the two before it, this one is going down to defeat in the courts.”
The third iteration of Trump’s travel ban had been set to go fully into effect early Wednesday, barring various types of travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Even before Chuang’s ruling, though, a federal judge in Hawaii stopped it — at least temporarily — for all of the countries except North Korea and Venezuela.
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Like Judge Watson’s order, Judge Chuang’s 91-page ruling also found Trump had exceeded his authority under immigration law, but only partially.
The order — which has “no specified end date and no requirement of renewal” — violated a nondiscrimination provision in the law in that it blocked immigrants to the United States based on their nationality, Chuang wrote.
But Chuang said he could not determine, as Watson did, that Trump had violated a different part of federal immigration law requiring him to find entry of certain nonimmigrant travelers would be “detrimental” to U.S. interests before blocking them.
Chuang instead based much of his ruling on his assessment that Trump intended to ban Muslims, and thus his order had run afoul of the Establishment Clause of the Constitution. When Trump was a presidential candidate in December 2015, Chuang wrote, he had promised a “complete shutdown of Muslims entering the United States,” and all of his comments since then seemed to indicate his various travel bans were meant to fulfill that promise.
After his second ban was blocked, Chuang wrote, Trump described the measure as a “watered down version” of his initial measure, adding, “we ought go back to the first one and go all the way, which is what I wanted to do in the first place.”
In August, with courts still weighing the second version, Chuang noted that Trump “endorsed what appears to be an apocryphal story involving General John J. Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood, advising people to ‘study what General Pershing . . . did to terrorists when caught.’ ”
In September, as authorities worked on a new directive, Trump wrote on Twitter “the travel ban into the United States should be far larger, tougher and more specific — but stupidly, that would not be politically correct!”
Chuang had pressed challengers at a hearing this week on what the government would have to do to make the new ban legal, and he noted in his ruling that the new directive had changed from the previous iterations. The government, for example, had undertaken a review process before inking the new measure, and had added two non-Muslim majority countries to the banned list.
But Chuang wrote that he was unmoved that government had simply relied on the results of their review, and instead believed they made “certain subjective determinations that resulted in a disproportionate impact on majority-Muslim nations.” He wrote that the government offered “no evidence, even in the form of classified information submitted to the Court, showing an intelligence-based terrorism threat justifying a ban on entire nationalities,” and asserted that even the new measure “generally resembles President Trump’s earlier description of the Muslim ban.”
“The ‘initial’ announcement of the Muslim ban, offered repeatedly and explicitly through President Trump’s own statements, forcefully and persuasively expressed his purpose in unequivocal terms,” Chuang wrote.
I would anticipate that the U.S. District Court for Washington will also, once again, rule against this latest iteration of the Muslim travel ban.
These new cases will, of course, be appealed by the Trump administration and will eventually work their way up to the U.S. Supreme Court — if not rendered moot by yet another iteration of the Muslim travel ban.