Trump travel ban suffers second setback in federal court

GREENBELT, Md. — President Donald Trump’s revised travel ban was dealt another legal setback Thursday when a federal judge in Maryland rejected the prohibition against six predominantly Muslim countries.

The ruling near the nation’s capital was the latest blow to Trump’s ban, with a federal judge in Hawaii rejecting the measure on Wednesday. Both judges cited Trump’s own words as evidence of his intent in issuing the new plan.

U.S. Judge Theodore Chuang ruled Thursday in Greenbelt, Maryland, in a case brought by the American Civil Liberities Union and other groups representing immigrants, refugees and their families. The groups argued that the underlying rationale of the ban was to discriminate against Muslims, making it unconstitutional.

Chuang, who was appointed by then-President Barack Obama, called Trump’s own statements about intentions to impose a Muslim ban “highly relevant.” Trump’s second executive order does include changes from the first order, Chuang noted, such as the removal of a preference for religious minorities in the refugee process.

“Despite these changes, 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,” he said.

Government lawyers argued that the ban was substantially revised from an earlier version signed in January that was later blocked by a federal judge in Washington state. They said the ban was ordered in the interest of national security to protect the U.S. from “radical Islamic terrorism.”

The Maryland plaintiffs also argued the ban illegally reduces the number of refugees authorized to enter the U.S. this year.

Chuang granted a preliminary injunction on a nationwide basis, pending further orders from this court. He declined to stay the ruling should an emergency appeal be filed.

Ahmed Rehab, executive director of the Council on American-Islamic Relations in Chicago, praised the judges’ rulings in a news conference at O’Hare International Airport on Thursday morning.

“We are extremely happy,” Rehab said. The revised travel ban was, for all intents and purposes, still unjustly focused on Muslims.

“The thin legal cover was too thin to pass muster and it was exposed for what it is — indeed a religious ban, a Muslim ban,” Rehab said.

He was joined by attorneys who have been staffing a table at O’Hare International Airport’s Terminal 5, ready to assist travelers coming through the airport’s international arrivals terminal. They had been ready to gear up for a busier day, but with the ban blocked, they had little to do Thursday morning.

The attorneys were not expecting an uptick in requests for assistance.

“We never know, but we’re hoping it stays this way. The less drama the better,” said John Francis, a downtown Chicago attorney on duty at O’Hare Thursday.

Late Wednesday, another federal judge also had blocked the revised travel ban. That ruling marked the second time courts have thwarted Trump’s efforts to freeze immigration by refugees and citizens of some predominantly Muslim nations.

The ruling came from a judge in Hawaii who rejected the government’s claims that the travel ban is about national security, not discrimination. U.S. District Judge Derrick Watson also said Hawaii would suffer financially if the executive order constricted the flow of students and tourists to the state, and that Hawaii was likely to succeed on a claim that the ban violates First Amendment protections against religious discrimination.

Watson criticized what he called the “illogic” of the government’s arguments and cited “significant and unrebutted evidence of religious animus” behind the travel ban. He also noted that while courts should not examine the “veiled psyche” and “secret motives” of government decision-makers, “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 wrote, referring to a statement Trump issued as a candidate.

Trump called Watson’s ruling an example of “unprecedented judicial overreach” and said his administration would appeal it to the U.S. Supreme Court. He also called his new travel ban a watered-down version of the first one, which he said he wished he could implement.

“We’re going to win. We’re going to keep our citizens safe,” the president said at a rally in Nashville Wednesday. “The danger is clear. The law is clear. The need for my executive order is clear.”

Watson issued his 43-page ruling less than two hours after hearing Hawaii’s request for a temporary restraining order to stop the ban from being put into practice.

The hearing was one of three held in federal courts around the country on Wednesday. U.S. District Judge James Robart in Seattle, who blocked the initial travel ban last month, did not immediately rule on a request from an immigrant-rights group to block the revised version.

In all, more than half a dozen states are trying to stop the ban. A case brought by Washington state argues that the new order harms residents, universities and businesses, especially tech companies such as Washington state-based Microsoft and Amazon, which rely on foreign workers. California, Maryland, Massachusetts, New York and Oregon have joined the claim.

Trump’s initial travel ban, issued on a Friday in late January, brought chaos and protests to airports around the country as travelers from seven nations — Somalia, Iran, Iraq, Syria, Sudan, Libya and Yemen — were barred from entering even if they had prior permission to come to the U.S. The State Department canceled up to 60,000 visas.

Robart ordered the government to stop enforcing the ban, which also suspended the nation’s acceptance of refugees from around the world, and a three-judge panel from the 9th U.S. Circuit Court of Appeals unanimously declined to reinstate the ban.

The administration subsequently rewrote the ban, emphasizing more of a national security rationale, dropping Iraq from the list of banned countries and spelling out some reasons that travelers from the listed nations might be granted waivers allowing them into the U.S. despite the policy. The new ban does not apply to travelers who already have visas.

Critics of the ban said the changes made it more palatable, but they still argued that it violated both the Constitution and federal immigration law, and they tweaked their lawsuits to target the revised order.

Watson is a 2012 appointee of President Barack Obama. He is the only Native Hawaiian currently sitting as a federal judge and the fourth in U.S. history. He received his law degree from Harvard in 1991.

In his order, he found little evidence the travel ban would aid national security, noting a point brought up by the state: that a draft report from the Department of Homeland Security found nationality to be an “unlikely indicator” of terrorism threats.

Arguments at the federal court in Seattle focused on whether the travel ban is permitted by immigration law.

Robart grilled the lawyers about two seemingly conflicting federal laws on immigration — one that gives the president the authority to keep any class of aliens out of the country, and another that forbids the government from discriminating on the basis of nationality when it comes to issuing immigrant visas.

In Maryland, the judge weighed whether the measure discriminates against Muslims.

“Generally, courts defer on national security to the government,” Chuang said. “Do I need to conclude that the national security purpose is a sham and false?”

In response, ACLU attorney Omar Jadwat pointed to Miller’s statement and said the government had put out misleading and contradictory information about whether banning travel from six specific countries would make the nation safer.

Arguing for the Justice Department, Jeffrey Wall said: “It doesn’t say anything about religion. It doesn’t draw any religious distinctions.”

The Maryland lawsuit also argues that it’s against federal law for the Trump administration to reduce the number of refugees allowed into the United States this year by more than half, from 110,000 to 50,000. Attorneys argued that if that aspect of the ban takes effect, 60,000 people would be stranded in war-torn countries with nowhere else to go.

Watson made it clear that his decision applied nationwide, ruling that the ban could not be enforced at any U.S. borders or ports of entry or in the issuance of visas.

In the Hawaii case, the federal government said there was no need to issue an emergency restraining order because Hawaii officials offered only “generalized allegations” of harm.

Wall, arguing by telephone, challenged Hawaii’s claim that the order violates due-process rights of Ismail Elshikh as a U.S. citizen who wants his mother-in-law to visit his family from Syria. He said courts have not extended due-process rights outside of a spousal relationship.

Neal Katyal, a Washington, D.C., attorney representing Hawaii, called the story of Elshiskh, an Egyptian immigrant and naturalized U.S. citizen, “the story of America.”

Washington Attorney General Bob Ferguson, who filed the lawsuit that succeeded in blocking the first ban, cheered the Hawaii judge’s ruling.

“It’s very exciting,” Ferguson said. “At this point it’s a team effort — multiple lawsuits and multiple states.”

Contributing: Stefano Esposito