Virginia Judge Tees Up Travel Ban Argument for Top CourtBy , , and
Judge in Alexandria dissents in refusing to block Trump order
Ruling is an ‘important symbolic’ win for Trump, lawyer says
A Virginia judge helped tee up an argument likely to be fought all the way to the U.S. Supreme Court over President Donald Trump’s efforts to restrict travel to the U.S. from six predominantly Muslim countries.
U.S. District Judge Anthony Trenga in Alexandria on Friday denied a request to block Trump’s March 6 executive order, saying he’s not going to psychoanalyze the president for his motives in drafting the travel ban. That put Trenga at odds with other federal judges who have ruled the president’s past comments can be taken into account in determining whether he intended to discriminate against Muslims.
If the Supreme Court takes up Trump’s executive order, one question it’s likely to review is whether the directive is based on religious animus, said Tara Grove, a constitutional law professor at William & Mary Law School in Virginia.
“One of the key questions will be whether the court should look only at the text of the executive order or whether it should consider other evidence, including statements that President Trump and others have made,” Grove said.
The win in Virginia is important symbolically for Trump, said Danielle McLaughlin, a lawyer at Nixon Peabody.
"This does give some teeth to his argument, at least in the court of public opinion," McLaughlin said. "Trump has a direct line to the American people and there’s no question he’ll utilize the ruling to tell regular folks that his ban isn’t discriminatory."
The judge found the challengers weren’t likely to win when their case is argued in court.
“As the court correctly notes in its opinion, the president’s order falls well within his legal authority to protect the nation’s security,” White House spokesman Michael Short said in a statement. “We are confident the president’s fully lawful and necessary action ultimately will be allowed to move forward.”
The Virginia case was brought by Linda Sarsour, a well-known Muslim activist from Brooklyn, New York, and national co-chair of the Women’s March on Washington that took place the day after Trump’s inauguration. The suit was the first that sought to use Trump’s recent public remarks against him in court, in addition to his comments about Muslims during the campaign.
The Justice Department cited the ruling Friday in a filing in Honolulu federal court, where a judge is set next week to consider whether his temporary ban should be made more permanent. The government claims Judge Trenga’s decision is evidence that the revised order succeeded in eliminating implications of religious discrimination.
The government asked U.S. District Judge Derrick Watson to reject a preliminary injunction, the next step in Hawaii Attorney General Douglas Chin’s call for permanently blocking the executive order. If the judge issues an injunction, the Justice Department asked that it be limited to the section of the 15-page travel ban that prohibits new visa applicants from the six Muslim-majority countries. That would leave allow enforcement of a 120-day suspension of new applications for refugees.
Hawaii’s attorneys and opponents of the travel ban in other lawsuits argue Trump’s discriminatory intent was clear in his presidential campaign.
Gadeir Abbas, an attorney for the plaintiffs in Virginia, pointed to Trump’s remarks at a March 15 rally in Nashville, Tennessee, saying they showed the president’s real motive is a bias against Islam. That would violate the Constitution’s Establishment Clause, which prohibits any government preference for one religion over another.
He said “three times in 10 minutes, in front of thousands of people and with television cameras pointed in his face, that the new executive order is a watered-down version of the first," which courts had said unfairly targeted Muslims, Abbas said.
A San Francisco appeals court, in reviewing Trump’s initial travel ban, said courts could consider the motivation behind the order. Judge Watson in Honolulu accepted the invitation and in blocking the enforcement of the travel ban found that a reasonable person would conclude that the revised order was issued with “a purpose to disfavor a particular religion.”
Trenga, the Virginia judge, disagreed.
Changes made from the first executive order to the second were substantial enough that the president’s past remarks don’t carry as much weight, Trenga said.
Suggesting otherwise would require “a psychoanalysis of the drafter’s heart of hearts,” the judge said.
Trump replaced his first order by dropping Iraq from a list of seven countries whose citizens are barred from entering the U.S. for 90 days. The revised order halted admissions of refugees for 120 days, but it no longer banned Syrian refugees indefinitely and didn’t favor Christians. Permanent legal residents, also known as green card holders, and travelers with a valid visa were exempt under the new order.
The bitter fight over the travel bans has become an early test of whether the president will be able to deliver on his campaign promises. Other than an early win in Boston, the administration has lost in courts across the country as technology companies, universities, civil-rights advocates and states including Washington, Hawaii and Minnesota challenged the directive.
The losses forced Trump to revise his initial executive order, signed one week after he was sworn in, though the new version -- which he called “watered down” -- has also been blocked by courts.
A Maryland judge put the 90-day ban on visas for people from the six nations on hold, reinforcing a broader ruling out of Hawaii which additionally blocked a longer ban regarding refugees. The decisions stopped the second order from ever taking effect.
Trump slammed the rulings, saying that they “make us look weak” and that the travel restrictions are needed to protect Americans from “radical Islamic terrorists.” The Justice Department said Trump has broad legal authority to regulate immigration.
The government is appealing the Maryland ruling, arguing in a filing Friday that it was “unprecedented” for the judge to base his ruling on then-candidate Trump’s campaign statements.
‘‘The court should have focused on official acts, not perceived subjective motivations,’’ the Justice Department argued. Every president over the past 30 years has invoked executive powers to suspend the entry of immigrants to protect national security, the U.S. said.
The Maryland and Virginia cases may be combined by the U.S. Court of Appeals in Richmond, Virginia, said Stephen Wasby, a legal scholar at the State University of New York in Albany who isn’t involved in the case and is critical of the travel ban.
"It does not surprise me that a judge would defer to the president in such matters," Wasby said of Friday’s Virginia ruling. “This is immigration and foreign affairs, an area in which judges are more deferential to the executive."
The Virginia case is Sarsour v. Trump, 17-cv-00120, U.S. District Court, Eastern District of Virginia (Alexandria). The Maryland appeal case is International Refugee Assistance Project v. Trump, 17-1351, U.S. Court of Appeals for the Fourth Circuit (Richmond, Virginia). The Hawaii case is State of Hawaii v. Trump, 17-cv-00050, U.S. District Court, District of Hawaii (Honolulu).
— With assistance by Andrew M Harris