How federal judges used Trump’s own words to knock down his second travel ban.

How Federal Judges Used Trump’s Own Words to Knock Down His Second Travel Ban

How Federal Judges Used Trump’s Own Words to Knock Down His Second Travel Ban

The law, lawyers, and the court.
March 16 2017 12:27 PM

Groundhog Day in Travel Town

Once again, federal judges used Trump’s own words to knock down the administration’s travel ban.

President Donald Trump
President Donald Trump speaks at a rally on Wednesday in Nashville, Tennessee.

Andrea Morales/Getty Images

Donald Trump can’t seem to escape his own bigotry. On Wednesday, two federal judges blocked his second travel ban from taking effect, citing Islamophobic statements by the president and his advisers as evidence that the executive order discriminates unlawfully on the basis of religion. Neither judge was persuaded that the administration had stripped the new ban of the unconstitutional animus that undergirded the first one. And both suggested that the “taint” of Trump’s hateful comments could continue to plague his administration’s anti-immigrant policies in court.

In Hawaii, U.S. District Judge Derrick K. Watson granted the state’s motion for a nationwide temporary restraining order against the ban in a broad and thorough ruling. Watson had no patience for the argument that the second iteration of the travel ban was less constitutionally infirm than its predecessor. The original ban, released on Jan. 27 with little planning or vetting, was blocked by multiple courts, then enjoined nationwide by U.S. District Judge James Robart in early February. (Robart also held hearings on the second ban on Wednesday.) A panel of judges for the U.S. Court of Appeals for the 9th Circuit upheld that injunction against the first ban, and on Wednesday, a majority of judges on the court voted to leave that decision in place. And while the Trump administration continued to say it would defend the original ban after its defeat at the 9th Circuit, it quietly set to work refining it and rolled out a narrower order last week.

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The new version did not apply to green card holders or those who currently hold visas, nor did it expressly favor minority religionists over Muslims. It removed Iraq from the list of banned countries, and it created broader waivers for those seeking admission. It would have gone into effect at 12:01 a.m. on March 16, but Hawaii raced to halt it while Washington state and others filed suits of their own.

In the Hawaii case, Watson—an Obama appointee—found in a 43-page order that both the state of Hawaii and the plaintiff Ismail Elshikh—an imam of the Muslim Association of Hawaii who is of Egyptian descent—could challenge the revised order as religious discrimination. Hawaii and Elshikh challenged Section 2 and Section 6 of the new order, which suspended the refugee program and barred travel from six Muslim-majority countries. Watson meticulously listed the many statements made by the president suggesting the ban was simply a power-washed version of the “Muslim ban” he had promised on the campaign trail. He also noted statements made about the original order by Rudy Giuliani suggesting he had been tasked by the president with finding a way to implement his Muslim ban “legally.” And the judge cited statements by Trump adviser Stephen Miller promising the second version of the ban would hold “the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues” raised by the courts. The court also noted the leaked Department of Homeland Security report finding that “citizenship is an ‘unlikely indicator’ of terrorism threats against the United States.”

Watson determined that Hawaii had standing to challenge the order because its public university would be harmed by the ban and because tourism—one of Hawaii’s main economic drivers—would suffer if the travel ban stands. Thus, the state would suffer irreparable harms if the ban went into effect. He found that Dr. Elshikh similarly had standing because his Syrian mother-in-law would be unable to visit Hawaii, despite the fact that her visa application is in progress, and from the broader constitutional harms inflicted by the message that a “travel-ban is ‘needed’ to prevent people from certain Muslim countries from entering the United States.”

Turning to the plaintiffs’ likelihood of success on the merits, Watson rejected the government’s claim that the executive order is now religiously neutral because “the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population.” The “illogic of the government’s contention,” Watson wrote, “is palpable.” He added that “the notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”

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Watson wrote that he also could not accept the administration’s contention that the “neutral text is what this Court must rely on to evaluate purpose,” quoting the 9th Circuit to support his contention that it “is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”

In other words, if the legal fight over the new executive order turns on Trump’s demand that judges ignore reality, the administration is not going to win the fight. Watson wrote that he was unwilling to disregard “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” The Department of Justice had warned that he must not “look into the ‘veiled psyche’ and ‘secret motives’ of government decision makers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts.’ ” Watson’s response: “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.’ ” The judge dismissed the claims of an exigent national security emergency. At the same time, he conceded that it “is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation.” Trump might still sign a travel ban that passes muster. But it isn’t this one. Sections 2 and 6 of the executive order are enjoined across the nation.

In Maryland a few hours later, U.S. District Judge Theodore D. Chuang also blocked portions of the ban on both statutory and constitutional grounds. Chuang found that, by barring the issuance of visas to certain people because of their country of origin, the new order ran afoul of a federal law that prohibits discrimination in the immigrant visa process on the basis of nationality. He also ruled the order probably violated the Establishment Clause, writing that “even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban.” Like Watson, Chuang carefully analyzed Trump’s own expressions of animus toward Muslims, concluding that “these statements … continue to explain the religious purpose behind the travel ban in the Second Executive Order.” He issued a narrower injunction barring discrimination against travelers and visa applicants born in the six countries mentioned in the ban.

And surprising nobody over the age of 6, Donald Trump smacked back hard at Watson at an event in Nashville, Tennessee, on Wednesday night. Describing the Hawaii ruling as “terrible,” the president pledged to “take our case as far as it needs to go, including all the way up to the Supreme Court.” As the campaign-style crowd roared in approval, Trump sarcastically asked, “You don’t think this was done by a judge for political reasons, do you? No.”

“This ruling makes us look weak, which by the way we no longer are. We’re going to win,” he continued. “The danger is clear. The law is clear. The need for my executive order is clear.” He promised that Alan Dershowitz, a “liberal lawyer,” has insisted Trump will win at the Supreme Court. “I wasn’t thrilled, but the lawyers all said ‘oh, let’s tailor it.’ ” He repeated twice that the new ban is “a watered-down version of the first one.” He concluded, “I think we ought to go back to the first ban and go all the way. That’s what I wanted to do in the first place.”

Has no one seen fit to mention to Trump that his past statements about the ban and the courts are an ongoing problem? Either way, he made certain his statements about the ban and the courts … will remain an ongoing problem. The Justice Department will appeal both of Wednesday’s decisions, allowing the 9th Circuit to take another thwack at the president’s order and giving the left-leaning 4th Circuit an opportunity to examine it for the first time. Trump’s response to Wednesday’s rulings has already given these courts more grist to determine that the second ban retains the constitutional frailties of the first one. Let the appeals begin.

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Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.