Judges on Two Coasts Deal More Blows to Trump Travel Banby , , and
Rulings multiply hurdles for White House’s agenda on terrorism
Cases now turn to whether president was trying to ban Muslims
President Donald Trump’s attempt to close America’s borders to citizens of seven mostly Muslim countries suffered another blow Monday as judges on both coasts issued rulings that will make it even harder for the administration to rescue the beleaguered plan.
Together, the rulings mean that the administration may now have to start answering questions from state officials about whether Trump’s Jan. 27 executive order was a veiled attempt to ban Muslims from the U.S. The decisions in cases brought by Washington state and Virginia came just four days after a federal appeals court in San Francisco ruled against the administration, moving the entire issue a step closer to possible review by the U.S. Supreme Court.
“I saw this unlawful, unconstitutional, and un-American ban for exactly what it is and I’m glad the court has, too,” Virginia Attorney General Mark Herring said in a statement. “We presented a mountain of evidence showing this was the ’Muslim ban’ that President Trump promised as a candidate, while his administration failed to refute one shred of our evidence or provide any of its own to support its claims.”
U.S. District Judge Leonie Brinkema in Alexandria, Virginia, issued a scathing 22-page opinion that gave little weight to the administration’s claim that his order wasn’t an unconstitutional ban on Muslims. The judge highlighted Trump’s remarks as a candidate and years before that calling for the exclusion of Muslims.
Brinkema ruled that the travel ban can’t be enforced against “lawful” Virginia residents, whether they are at home or abroad, as well as those who attend or are employed by the state’s colleges and universities. The judge stopped short of freezing the president’s order nationwide as a Seattle judge did and Herring sought.
In Seattle, U.S. District Judge James Robart ruled Monday that evidence-gathering can start immediately in the Washington state case, siding with the state Attorney General Bob Ferguson who said he wants to move quickly toward a trial.
The two rulings are the latest in a series of setbacks for the administration in the implementation of the executive order. Almost immediately after Trump announced it, a judge in Brooklyn, New York, ordered a halt to deportations of people who made it to the U.S. Judges elsewhere followed with broader orders, and a federal appeals court in San Francisco then temporarily prohibited the U.S. from enforcing the ban nationwide.
The White House said Friday, a day after the appeals court ruling, that the president may issue an entirely new immigration order to address issues raised in the cases. The administration also floated the possibility it will ask the U.S. Supreme Court to uphold the existing restrictions.
Justice Department spokeswoman Nicole Navas declined to comment on Monday’s rulings.
Herring, in a late Monday night press teleconference, declined to say what he would do in the event Trump issues a new or revised executive order.
“It is really difficult to predict what the president might do,” he said.
Virginia’s top legal officer also declined to outline what steps his office will take to prepare for a possible trial over the travel ban or say whether he would seek the sworn statements of the president or his advisers.
“It is too early to begin commenting on what that strategy might be,” Herring said.
Issued without warning Jan. 27, Trump’s decree threw U.S. airports into turmoil as people bound for the U.S. learned only upon landing that they couldn’t leave arrival terminals. Many were turned back as spontaneous protests erupted outside customs areas in New York, Washington, Chicago, Dallas and elsewhere. It was the most consequential act of an administration that wants to minimize America’s engagement with the world, roiling global politics in the process.
Herring took the lead on a lawsuit initially filed by two Yemeni brothers who had attempted to visit their father in Michigan. Tareq and Ammar Aziz claimed that customs agents at Dulles International Airport tricked them into leaving the U.S. by telling them falsely they would otherwise be shut out for five years. They dropped out of the case after later being allowed into the country.
The Anti-Defamation League, the Southern Poverty Law Center and Arab-American organizations and attorney generals from 16 more states plus the District of Columbia filed court briefs in support of Herring’s arguments that the president’s order is a “monumental abuse of executive power.”
Herring, a first-term Democrat, argued in court papers that the ban harmed the constitutional rights of Virginia’s lawful immigrant and non-immigrant residents and disrupted its colleges and universities. The order, he said, was “conceived in bigotry.”
The Alexandria judge found that the government “responded with no evidence other than” its executive order to defend the travel restrictions.
“Maximum power does not mean absolute power,” Brinkema wrote. “Every presidential action must still comply with the limits set by Congress’s delegation of powers.’
In Seattle, Justice Department lawyers had argued that it’s best to pause the case there, in which Washington state was joined by Minnesota, until the San Francisco appeals court decides the next step.
After one appeals judge asked for a rehearing by a larger panel, the chief judge of the court directed lawyers for both sides to file arguments by Thursday over whether reconsideration is appropriate. Typically a rehearing is granted when a majority of active judges on the court vote for it.
In Twitter posts, Trump has excoriated Robart as a “so-called judge” and called his Feb. 3 ruling freezing the travel ban “ridiculous.”
Michelle Bennett, a Justice Department lawyer, argued Monday that as long as the freeze is in place, the litigation can wait to resume as Washington and Minnesota “aren’t being harmed anyway."
"I’m surprised to hear that since the president announced he wanted to see each other in court,” the judge said, referring to a Trump tweet on Thursday that said: “SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE!”
“Are you confident that’s the argument you want to make?" Robart asked Bennett.
“Yes, your honor," she said.
The rulings in Seattle and Alexandria came after 17 elite universities including Harvard, Yale and Stanford joined forces to argue that the ban threatens their ability to recruit students, faculty and scholars from abroad and to “meet their goals of educating tomorrow’s leaders from around the world.”
The schools, along with New York City and other municipalities, are asking a Brooklyn federal judge for permission to join a lawsuit there opposing the ban. The American Civil Liberties Union and immigrant rights groups’ lawsuit has already led to a national order barring the government from relying on the ban to deport those who arrived on U.S. soil.
“These international students, faculty and scholars make significant contributions to their fields of study and to campus life,” the schools said in the court filing.
The other schools joining in the request are Brown, Carnegie Mellon, University of Chicago, Columbia, Cornell, Dartmouth, Duke, Emory, Johns Hopkins, the Massachusetts Institute of Technology, Northwestern, University of Pennsylvania, Princeton and Vanderbilt.
The travel ban barred Syrian refugees indefinitely, and blocked for 120 days all others fleeing their homelands claiming persecution or fear of violence. No citizens of Syria, Iran, Iraq, Yemen, Somalia, Libya or Sudan initially could enter the U.S. for 90 days. The government amended the directive to allow those citizens to enter if they held a U.S. permanent resident permit, commonly known as a Green Card.
The case is Aziz v. Trump, 17-cv-116, U.S. District Court, Eastern District of Virginia (Alexandria). The Washington state case is State of Washington v. Trump, 17-cv-00141, U.S. District Court, Western District of Washington (Seattle). The Brooklyn case is Darweesh v. Trump, 17-cv-00480, U.S. District Court, Eastern District of New York (Brooklyn).