President Donald Trump's second travel ban blocked by two judges

President Donald Trump effectively abandoned an earlier, broader version of his travel ban order after the bulk of it was blocked by another federal judge

A federal judge in Hawaii issued a worldwide restraining order against enforcement of key parts of President Donald Trump’s revised travel ban executive order just hours before the directive was set to kick in, backed up by a second federal judge in Maryland who put out his own ruling blocking parts of the order.

U.S. District Court Judge Derrick Watson ruled that the state of Hawaii and a local Muslim leader had “a strong likelihood of success on their claim” that Trump’s order intentionally targets Muslims and therefore violates the Constitution’s guarantee against establishment of religion.

Watson bluntly rejected the federal government's claims that the new directive does not target Islam because it is focused on six countries that account for less than 9 percent of the world's Muslims.

"The illogic of the Government’s contentions is palpable," wrote Watson, an appointee of President Barack Obama. "The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise."

Hours after that opinion emerged a federal judge in Maryland, U.S. District Court Judge Theodore Chuang—also an Obama appointee and former Department of Homeland Security deputy counsel— held that Trump's order appeared to violate a specific provision in federal law by blocking the issuance of immigrant visas from the six targeted countries.

The rulings are another serious blow to Trump’s attempt to limit immigration as part of what he claims is an effort to reduce the threat of terrorist attacks in the U.S.

Trump slammed the decision during a speech to a campaign rally in Nashville a short time after the new restraining order was issued.

"This is, in the opinion of many, an unprecedented judicial overreach....This ruling makes us look weak," the president declared before appearing to vow to take the issue to the Supreme Court. "This is a watered-down version of the first one....I think we should go back to the first one and go all the way which is what I wanted to do in the first place."

“Trump’s statements tonight? He should just continue talking, because he’s making our arguments for us,” said Marielena Hincapié, Executive Director, National Immigration Law Center.

A spokewoman for the Department of Justice called the ruling "flawed both in reasoning and in scope," adding that the administration will "continue to defend this Executive Order in the courts."

Trump effectively abandoned the earlier, broader version of his travel ban order after the bulk of it was blocked by another federal judge and a three-judge appeals court panel declined to allow Trump to restore it.

As the White House mulled the possibility of an appeal of the latest ruling, there was one piece of good news for Trump's team: roughly two hours after Watson issued the new restraining order, five 9th Circuit judges formally declared that the original appeals panel made a "fundamental error" by refusing to let Trump proceed with his first order.

The dissenters' move does not alter that earlier ruling but could be seen as a signal to other judges or even the Supreme Court that Trump's travel orders are legally valid.

"The President’s actions might have been more aggressive than those of his predecessors, but that was his prerogative," Judge Jay Bybee and four other Republican-appointed appeals judges wrote in a dissent from the decision not to reconsider the appeals court's earlier ruling. "Even if we have questions about the basis for the President’s ultimate findings—whether it was a 'Muslim ban' or something else—we do not get to peek behind the curtain. So long as there is one 'facially legitimate and bona fide' reason for the President’s actions, our inquiry is at an end."

However, Chuang soundly rejected that approach in his ruling from Maryland, using Trump's campaign comments and pledges to conclude that the primary purpose of Trump's travel ban order was to advance religious bias.

"These statements, which include explicit, direct statements of President Trump's animus towards Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible, President Trump's promised Muslim ban," U.S. District Court Judge Theodore Chuang wrote.

Chuang's decision flatly dismissed the federal government's arguments that Trump's comments before he took office should not be considered in assessing the executive order's purpose.

"Simply because a decisionmaker made the statements during a campaign does not wipe them from the 'reasonable memory' of a 'reasonable observer,'" the judge wrote, pointing to a federal appeals court decision that considered "billboards and campaign commercials" for Alabama Chief Justice Roy Moore in concluding that he was motivated by religion when he had a Ten Commandments display installed at a state courthouse.

Chuang said the conclusion that anti-Muslim sentiment was the primarily reason behind the travel ban was supported by the fact that it seemed to be a poor fit for known terrorist threats.

"In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban," the judge wrote. "While the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban."

Watson's order took a similar tack, citing campaign trail statements by Trump that the judge said amounted to "significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor."

Watson's ruling — applicable "in all places, including the United States" — blocked two core provisions of Trump's redrafted order: a 90-day halt in issuance of visas to citizens of six majority-Muslim countries and a 120-day halt of refugee admissions from around the globe. The judge's 43-page decision was issued about two hours after a court session in Honolulu where he heard arguments over the legality of the revised order Trump signed last week.

Chuang's decision was narrower in effect, halting only the ban on newly-issued visas for citizens of the six countries and not interfereing with the interruption in refugee admissions.

The rulings followed a series of four court hearings on Trump's revised travel ban held in the hours before it was set to take effect.

In addition to the court sessions in Honolulu and Greenbelt, Md., two hearings took place in

Seattle, where U.S. District Court Judge James Robart listened to arguments on a suit filed by individuals in Washington state and their family members abroad. In addition, a group of about half a dozen states asked Robart, the same judge who issued the injunction last month blocking Trump's first travel ban, to declare that his initial ruling covers the president's replacement order.

Citing differences in the two orders, the George W. Bush appointee turned down that request, according to reporters in the courtroom. However, Robart left unclear whether he would grant separate motions to block the new order.

At the Maryland hearing, refugee aid organizations pleaded with Chuang not to bury his head in the sand and ignore Trump's numerous vows to cut off travel to the U.S. by adherents of Islam.

“It’s asking the court to turn a blind eye to all of the evidence that’s apparent to everybody," said Omar Jadwat of the American Civil Liberties Union. "It doesn’t make sense to blind the court.”

However, acting Solicitor General Jeffrey Wall warned the judge against taking into account statements Trump made before he took office. The Justice Department lawyer said the revised order Trump issued last week doesn't even mention religion.

"This is an order that draws no religious distinctions at all," Wall insisted.

The Maryland suit was filed last month by two refugee aid groups, the International Refugee Assistance Project (IRAP) and HIAS, a Jewish charity that facilitates refugee resettlement in the U.S. for the federal government. Several individuals who claim to be directly affected by Trump's orders are also plaintiffs.

The Maryland suit is the only one that includes a challenge to a specific aspect of Trump's orders: a provision lowering the cap on annual refugee admissions for the current fiscal year to 50,000 from 110,000. In addition to the broader argument about the order as a whole being tainted by religious bias, the suit argues that Trump had no authority to lower that cap since federal law says it must be established before the fiscal year begins.

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Rob Myers
By Rob Myers 03/16/2017 04:22:00