Travel-Ban Fight Shifts to Virginia After Trump Appeals Loss

  • Lawsuit seeks more-permanent block to executive order
  • State claims damage to its economy, state-backed colleges

A Legal Explanation of Trump's Travel Ban Appeal Options

A federal judge in Virginia said she’d rule as soon as possible on extending a block on President Donald Trump’s ban on travel to the U.S. by residents of seven majority-Muslim countries.

While Trump lost Thursday before a California federal appeals panel that addressed a Washington state case, the Virginia lawsuit by the state’s attorney general, Mark Herring, is one of a handful with the potential for a longer-lasting hold on the administration’s travel ban on hold. The U.S. Supreme Court will likely have the final say on whether the immigration policy is legal.

While a single court can block Trump for now, immigration advocates are pushing for court-ordered delays in several cases, as they work to keep the door open for travelers, residents and refugees for as long as possible. The Justice Department argues the enhanced border-security policies are needed to prevent terrorism, but judges are balking at a lack of evidence that such moves will accomplish that goal.

The administration will act anew on immigration next week, Trump said Friday during a news conference with Japanese Prime Minister Shinzo Abe. He didn’t specify whether that meant filing a Supreme Court appeal or issuing a revised executive order.

What’s the Virginia case about?

Virginia claims Trump is barring people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen to deliver on the "Muslim ban" he called for during his presidential campaign. The state is asking U.S. District Judge Leonie Brinkema, who was appointed to the court by President Bill Clinton, to enter a preliminary injunction blocking enforcement of the ban throughout the U.S. while she considers a more permanent ruling.

The government hasn’t provided a "scintilla of evidence" to refute claims made by former Secretaries of State Madeline Albright and John Kerry and other foreign policy experts that Trump’s executive order would be ineffective and make the U.S. less safe, Brinkema said at a hearing Friday in Alexandria, Virginia.

The judge also said the government hadn’t provided any evidence that the seven countries identified in the executive order present a "unique threat" to the U.S. The court "has been begging" for the evidence, and "none has been forthcoming," Brinkema said.

A win for Virginia would bolster the freeze ordered by a federal judge in Seattle and multiply the problems for the Trump administration in trying to put the travel ban in place. A victory by the government could create a split with Thursday’s ruling and hasten review by the Supreme Court. In either event, the losing party is likely to appeal.

Brinkema said her decision can’t be "written overnight," but that she’d issue it as soon as possible. She noted the temporary ban issued by a Seattle federal judge applies nationwide.

How does this case relate to other cases around the nation?

Immigration advocates, states and individual visa-holders have filed more than 10 suits in federal courts challenging the ban.

The Seattle order is the broadest, effectively blocking enforcement of much of the executive order. Virginia’s request would block enforcement of the section barring travel by citizens of the seven named countries, but doesn’t affect the part of the order blocking refugees from entering the U.S. 

The Brooklyn order is even narrower, blocking the government from deporting those arriving in the U.S from the seven countries. There are distinctions in how the cases confront Trump’s order.

What does Virginia claim?

Lawyers for Virginia said in a brief filed with the court that the order is "a monumental abuse of executive power" that harms the state’s economy and public universities by barring foreign students, professors, workers and their family members.

The order violates the U.S. Constitution’s Establishment Clause, which bars the government from favoring one religion over another, according to the state. And stripping visa-holders and permanent U.S. residents from the seven countries without a hearing violates the Fifth Amendment’s Due Process Clause, it claims. Sixteen states and the District of Columbia filed a brief supporting Virginia’s claims.

There is "overwhelming evidence that the executive order is simply Trump’s way of following through on a campaign promise to ban Muslims," Stuart Raphael, Virginia’s solicitor general, told the judge Friday. "If a law is designed to harm a religion or advanced a religion, it is unconstitutional."

What does the Trump administration say?

Lawyers representing the U.S. claim Virginia isn’t a proper party to sue over a travel ban. Congress gave the president "unreviewable authority to suspend the entry of any class of aliens," the government said in its brief. 

Virginia’s claims of damage to its economy and state-run colleges are vague and insufficient to support an order blocking the government from enforcing the immigration laws. The ban doesn’t target Muslims, but is intended to allow the government to institute stricter controls on immigration from countries where "deteriorating conditions" due to "war, strife, disaster and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States," the U.S. said.

In court, the government raised the prospect of Trump being called to testify at a later proceeding if Brinkema granted an injunction and set the case on course for a full-blown trial and possible permanent order. Outside the courthouse, Herring sidestepped a question as to whether he’d actually seek Trump’s testimony, saying the administration’s attorney was trying to deflect attention from bigger issues.

“This is, in fact, the Muslim ban that the president talked about when he was a candidate,” Herring said.

Many of the arguments are the same as in the case decided in California on Thursday. It’s unclear whether the Virginia court will agree with the California court.

The case is Aziz v. Trump, 17-cv-116, U.S. District Court, Eastern District of Virginia (Alexandria).

— With assistance by Justin Sink

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