Noah Feldman, Columnist

Real Drama for Travel Ban Will Be at Appeals Court

Hawaii's ruling against Trump's second executive order is headed to the circuit where judges are still arguing over the first.

March 16, 2017 at 4:16 PM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

No ban at the airports yet.
Photographer: Sandy Huffaker/AFP/Getty Images

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As the saga of President Donald Trump’s ban on travel to the U.S. from six majority-Muslim countries unfolds, a federal judge in Honolulu on Wednesday blocked the operation of the second version of the executive order nationwide. The decision rests on the logic that the second iteration is the same old wine in a new bottle. As a Muslim ban, the court ruled, the executive order violates the establishment clause of the Constitution by sending a message to Muslims that they are disfavored members of the political community.

The stage is now set for a replay at the U.S. Court of Appeals for the 9th Circuit, which upheld the blockage of the first ban by a federal judge in Seattle. If the appeals court thinks it’s sufficiently similar to the first case, it might even go back to the same three judge panel. That bodes ill for Trump. Meanwhile at the 9th Circuit, five other judges have taken the unusual step of saying the original panel decision was wrong. This case is just getting started.