On Wednesday, a federal judge for the United States District Court for the District of Hawai’i issued a temporary restraining order blocking key parts of President Trump’s revised travel ban from going into effect nationwide. And on Thursday, a judge for the United States District Court for the District of Maryland issued an injunction reinforcing that restraining order.
These rulings represent the latest in a series of exchanges between the President’s administration and the federal judiciary over the constitutionality of his so-called “Muslim ban.”
On January 27, 2017, President Trump issued his administration’s first order barring the admission of travelers from seven predominantly-Muslim countries. This ban, instituted through Executive Order No. 13,769, drew heavy opposition and was ultimately challenged through several lawsuits. The ban was first considered in the judiciary by the United States District Court for the Western District of Washington, which, on February 3, 2017, issued a nationwide preliminary injunction blocking enforcement of the ban.
On February 4, the Government filed an emergency motion with Ninth Circuit, imploring that court to lift the injunction while its appeal of the Washington court’s ruling was pending. When the Ninth Circuit refused to reinstate the travel ban, the Trump administration announced its intent to withdraw its appeal, and instead re-draft the ban that would “eliminate what the [Ninth Circuit panel] thought were constitutional concerns.”
The Trump administration issued its revised order on March 6, revoking Executive Order No. 13,769, yet maintaining its title—“Protecting the Nation from Foreign Terrorist Entry into the United States.” Notably, the revised order eliminated Iraq from the list of countries whose citizens are banned from traveling to the United States, and excluded from its scope individuals who currently hold visas or permanent resident status. On the same date, the administration filed a Notice of Filing of Executive Order with the Washington Court, notifying the parties to that litigation that because the new order “sets forth policies substantially different from the policies in Executive Order No. 13,769,” the Government planned to immediately begin enforcement the revised order on its effective date, March 16, 2017.
One day before the revised order was set to come into force, however, the U.S. District Court for the District of Hawai’i blocked the enforcement of its key provisions. The Court reasoned that state of Hawai’i, acting as the plaintiff, had demonstrated a strong likelihood that it would ultimately succeed on its First Amendment claims of religious discrimination. Stating that it “cannot find the actions taken during the interval between revoked Executive Order No. 13,769 and the new Executive Order to be genuine changes in constitutionally significant conditions,” the Court blocked enforcement Sections 2 and 6 of the revised order, thereby suspending the 90-day travel ban against the 6 enumerated countries, as well as suspending the prohibition against refugee admissions.
The U.S. District Court for the District of Maryland echoed the Hawai’i court’s reasoning, issuing a more limited injunction barring enforcement of the revised order’s 90-day, country-specific travel prohibition. Finding that the Trump administration had drafted that provision with the primary intent of discriminating against Muslims, the Court blocked its enforcement.
Still, the future of the travel ban remains uncertain. In a press conference on Thursday, White House Press Secretary Sean Spicer stated that the Trump administration plans to appeal the Maryland decision to the 4th Circuit “soon,” and that after seeking “clarification” on the Hawai’i court’s order it may appeal that ruling to the 9th Circuit. Similarly, the Department of Justice issued a statement Wednesday night announcing that the Department “strongly disagrees with the federal district court’s ruling” and will “continue to defend this Executive Order in the courts.” Meanwhile, the revised order faces challenges in several other courts, including the same Washington district court in which the original executive order was blocked.
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