With the rulings by federal district court judges Theodore Chuang in Maryland and Derrick Watson in Hawaii, the Trump administration has now struck out in court three times but is refusing to retire to the dugout. Instead, the administration appealed the decision in the Maryland case on Friday [March 17] and presumably is preparing to appeal the decision in the Hawaii case. The appeal in the Hawaii case could go to the same three-judge panel that previously upheld the injunction against the administration’s first executive order in a case brought by the states of Washington and Minnesota.
At the risk of mixing sports metaphors, the two rulings on the administration’s revised order are the equivalent of an “own goal” in soccer. Both judges naturally cited Trump’s campaign promise to impose a “total and complete shutdown of Muslims entering the United States.” And they quote the Trump adviser Rudolph Giuliani as saying that Trump tasked him with coming up with “the right way to do it legally.”
That was enough evidence to convince Judge James Robart in the Washington case that the first executive order was in fact a Muslim ban that violated constitutional principles on freedom of religion. Stephen Miller, a 30-something “senior” policy adviser in the White House steeped in anti-immigrant views since he was a teenager, gave the plaintiffs in the new cases the evidence they needed to kick the administration’s case into its own net. Interviewed by Fox News on the White House lawn, Miller declared that EO2 would have “mostly minor technical differences” from EO1 and would represent “the same basic policy outcome for the country.”
The facts in the cases are bad for the administration, but the two new rulings, though strongly written, are by no means free of legal doubt. If one or both cases reach the Supreme Court, the outcome would be less than certain. And it could turn on the vote of a yet-to-be-confirmed ninth justice: hypothetically, Trump’s nominee for the vacancy, the conservative federal appeals court judge Neil Gorsuch.
The administration claims that the ban on travelers from originally seven and now six majority-Muslim countries after Iraq was deleted from the list was needed to protect the homeland from attack by “radical Islamic terrorists.” The administration argued as justification that the Obama administration had warned against travel to those countries, but plaintiffs’ lawyers echoed immigration rights advocates in pointing out that no terrorist attacks within the United States have been linked to immigrants from the countries included in the ban.
Trump was speaking to a political rally in Nashville right after getting word of the ruling in the Hawaii case. He called it a “political decision” and for good measure voiced regrets that he had been prevailed on to water down the original order. The partisan critique is belied, however, by the rulings in the Washington case. Robart was appointed by President George W. Bush; the three-judge panel that unanimously upheld the injunction he issued included two Democratic appointees William Canby and Michele Friedland and one Bush appointee, Richard Clifton. With 29 judges on the Ninth Circuit altogether, only five Republican appointees voted to rehear the government’s appeal of the injunction.
The two new cases include individual plaintiffs with arguably stronger arguments for legal standing to challenge the executive order in court than the two states, Washington and Minnesota, that brought the earlier suit against the first executive order. Hawaii is the named plaintiff in that case, but the plaintiffs also include a local Muslim leader, Ismail Elsheikh, a U.S. citizen with a Syrian-born wife, who says the ban will prevent a family visit by his Syrian mother-in-law. The Maryland case, brought by the International Refugee Assistance Project, also includes individual plaintiffs with similar interests in travel by relatives from the affected countries.
All three rulings collide with the usual deference that courts give to the executive branch on national security issues and with the usual preference to rely on representations in court over out-of-court statements, such as campaign speeches or news interviews. In addition, former U.S. solicitor general Paul Clement rebutted the criticism of the administration’s singling out of individual countries in the order. “You can't have an immigration regime unless you focus on the country of origin," he remarked at a law school appearance, noting as an example the 50-year ban on travel from Cuba.
Still, plaintiffs’ lawyers are optimistic and confident. “Keep talking, Mr. President,” Omar Jadwat, the ACLU’s lead lawyer in the Maryland case, taunted in a blog post. Harvard law professor Alan Dershowitz similarly saw Trump as his own worst adversary in the case. The best thing the president could do for the case, Dershowtiz quipped, would be to stop talking however improbable that might be.