A second federal judge issued an injunction Thursday blocking enforcement of one of the critical sections of President Trump’s revised travel ban, using Trump’s own comments against him in deciding that the ban was likely to run afoul of the Constitution.
The decision from U.S. District Judge Theodore D. Chuang in federal court in Maryland marks another win for challengers of the president’s executive order, which had been slated to take effect at 12:01 a.m. Thursday. Earlier, a different federal judge in Hawaii stopped it.
Chuang’s order did not sweep as broadly as the one in Hawaii, but he similarly declared that even the revised travel ban was intended to discriminate against Muslims. He said those wanting evidence of anti-Muslim intent need look no further than what the president himself has said about it.
Chuang’s ruling won’t upend or call into question the decision in Hawaii, instead offering some measure of reinforcement, and a different appeals court through which the government would likely have to pass.
“The history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban,” Chuang wrote.
Lee Gelernt, an ACLU lawyer representing those challenging the ban in Maryland, said the ruling in his case was significant in that “two judges have looked at the revised order, and both have come to the same conclusion that it continues to be a Muslim ban.” He said he was also encouraged that yet another judge was willing to look beyond the order itself to the president’s comments and other potential evidence of discriminatory intent.
The Justice Department said that it strongly disagreed with the ruling in the Hawaii case, and that the executive order Trump issued “falls squarely within his lawful authority in seeking to protect our nation’s security.”
The government’s next legal step is unclear. The Justice Department has said only that it will “continue to defend this Executive Order in the courts.”
At a rally in Nashville on Wednesday, Trump said he was prepared to take the case to the Supreme Court. He also mused about a return to his original executive order, which imposed a more sweeping ban than the second.
“Let me tell you something. I think we ought to go back to the first one and go all the way,” Trump said. “The danger is clear, the law is clear, the need for my executive order is clear.”
The first order temporarily barred entry for citizens of seven Muslim-majority countries and suspended the U.S. refugee program. When it was implemented, the State Department provisionally revoked tens of thousands of visas, and some travelers affected while in transit were detained and deported from U.S. airports.
Officials had hoped the revised version would be more defensible in court. It reduced the list of countries affected to six — removing Iraq, while keeping Iran, Somalia, Sudan, Libya, Yemen and Syria. It also applied only to those seeking new visas, and spelled out a robust list of those who might be exempted. The new order maintained the suspension of the refugee program.
On Wednesday, with the order set to go into effect in just hours, federal judges in three states heard urgent challenges to the measure. The case in Maryland was brought by three organizations and six people, claiming the order affected their work or prevented their family members from the affected countries from getting visas to enter the United States.
Chuang blocked only the provision of the new order affecting the issuance of visas to those from the six affected countries. He said those suing had “not provided a sufficient basis” for him to declare the other sections invalid.
In Hawaii, U.S. District Judge Derrick K. Watson went further, also suspending the portion of the order that affected refugees.
His ruling will be undisturbed by Chuang’s, and appeals courts would ultimately have to decide to what extent each of them was right.
Justice Department lawyers had argued that the ban was necessary for national security. As evidence to support their claim, they pointed to a request from the U.S. attorney general and homeland security secretary — penned March 6, after the first ban had been frozen — asking for the measure. They also pointed to more than 300 people who they said entered the United States as refugees and were the subjects of counterterrorism investigations
Chuang wrote that he “should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban,” but if the national security rationale was secondary to an attempt to disfavor a particular religion, he had no choice but to block the executive order.
“In this highly unique case,” he wrote, “the record provides strong indications that the national security purpose is not the primary purpose for the travel ban.”
The same federal district court judge in Washington who blocked Trump’s first travel ban is also considering challenges to the new one.