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 Donald 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 U.S., 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."
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.
That judge, Derrick K. Watson, blocked the administration from enforcing the measure on anyone from the six countries, not just those with a "bona fide" U.S. tie. But his ruling did not address whether Trump's intent in imposing the directive was to discriminate against Muslims. He said the president had merely exceeded the authority Congress had given him in immigration law.
The Justice Department already had vowed to appeal Watson's ruling, which the White House said "undercuts the President's efforts to keep the American people safe and enforce minimum security standards for entry into the United States." Both Watson's temporary restraining order and Chuang's preliminary injunction are also interim measures, meant to maintain the status quo as the parties continue to argue the case.
The administration had cast the new measure as one that was necessary for national security, implemented only after officials conducted an extensive review of the information they needed to vet those coming to the U.S. Those countries that were either unwilling or unable to produce such information even after negotiation, officials have said, were included on the banned list.
"These restrictions are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our Nation," the White House said after Watson's ruling. "We are therefore confident that the Judiciary will ultimately uphold the President's lawful and necessary action and swiftly restore its vital protections for the safety of the American people."
Like Watson's order, 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 non-discrimination provision in the law in that it blocked immigrants to the U.S. 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 non-immigrant 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 he was a presidential candidate in December 2015, Chuang wrote, Trump 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 (to) go back to the first one and go all the way, which is what I wanted to do in the first place." The president had then revoked and replaced his first travel ban, which had also been held up in court.
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 '[s]tudy 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.
The suit in federal court in Maryland had been brought by 23 advocacy groups and seven people who said they would be negatively impacted by the new ban.
Author Information: Matt Zapotosky covers the Justice Department for the Washington Post's National Security team.