A federal judge in Alexandria, Va., pressed the government Friday to produce any evidence that a ban on travel from seven overwhelmingly Muslim countries was necessary on national security grounds.
Referring to the California federal appeals court decision Thursday that maintained a freeze on President Trump’s executive order, U.S. District Judge Leonie M. Brinkema said that “the courts have been begging you to provide some evidence, and none has been forthcoming.”
The presidential order, she said, “has all kinds of defects” and “clearly is overreaching” when it comes to long-term residents of the United States. The White House has issued guidance that those residents are exempt from the ban, but that language is not actually in the order.
The only evidence provided by the government in the Virginia challenge to the ban that she was considering, she noted, was the order itself.
On the other hand, Brinkema said, “there is some strong, colorful evidence that the motivations for this order may bump into the establishment clause of the First Amendment” — a reference to freedom of religion.
She said there was also “startling evidence” from national security professionals that the order “may be counterproductive to its stated goal” of keeping the nation safe.
Brinkema cited a letter from a bipartisan group of former high-ranking officials who warned that the ban would aid the Islamic State’s propaganda efforts, endanger troops abroad and damage counterterrorism relationships.
“I don’t have a scintilla of evidence from the respondents that counters this very powerful piece of evidence,” Brinkema said. “Give me the evidence.”
Virginia is asking for a nationwide injunction against the ban similar to that issued in Washington state and upheld by the 9th Circuit Court of Appeals in California. Virginia Attorney General Mark Herring intervened in the case last week, arguing that Virginia will lose students and workers under the order.
As one example, the state’s attorneys point to Najwa Elyazgi, a Libyan senior at George Mason University. After being stranded in Istanbul for a week and returning only under the Washington state court order, Elyazgi says she plans to attend graduate school in Canada.
Virginia’s solicitor general, Stuart Raphael, said that over a thousand college students and 66 faculty members in Virginia are affected by the ban.
“They can’t leave and know that they can come back,” he said.
Erez Reuveni, senior litigation counsel from the Justice Department’s Office of Immigration Litigation, argued that the state had no standing to challenge the ban. The original plaintiffs in the case, Tareq and Ammar Aziz, have dropped their suit after successfully entering the United States. So has plaintiff Sahar Kamal Ahmed Fadul, who came through Dulles on Tuesday.
“Virginia has a policy dispute with the president,” Reuveni said. “Virginia cannot place itself in removal hearings.”
While an individual affected by the ban might be able to bring a case against it, Reuveni argued that Brinkema could not review the rationale behind national security policy.
“I don’t even understand how this trial would work,” Reuveni said. “Could President Trump be called to testify? … I don’t think you want to go there.”
Brinkema challenged that assertion. While she acknowledged that the president has the right to bar people from coming into the United States if he finds “the entry of any aliens” would be “detrimental” to the country’s interests, she said the finding must have some basis.
“The word finding in the law doesn’t just mean one thinks, one believes,” she said.
She asked Reuveni if the president could deem all redheads a threat to the country and ban them.
“Are you saying a court could not look at that order and say, ‘What is going on here?’” she asked.
Reuveni responded that the government, not the courts, make national security determinations. For a court to do so, he said, might be a “constitutional crisis.”
But he also argued that statements Trump made “prior to taking the oath of office” should not be used to evaluate his current actions.
Former national security professionals, he said, “don’t know what’s happened today, when the president does.”
On the 9th Circuit’s order, Reuveni said, “We may appeal, we may not.”
Brinkema did say she would have to evaluate how to handle the Virginia case in light of the 9th Circuit ruling. Raphael argued that the commonwealth is actually further along in challenging the ban than Washington state.
“It’s not a race,” Brinkema said.