The speed with which the administration moved was befitting of the national security crisis the ban purported to address. The administration ultimately lost in court, and since then, it has slowed the pace considerably, putting off a rewrite of the executive order several times and now proceeding more gradually as it fights court-imposed suspensions of the new ban.
Legal analysts and opponents say the Justice Department is likely pursuing a more methodical, strategic approach in hopes of a long-term victory — although in the process, the administration is hurting its case that the order is needed for urgent national security.
“If they don’t try to move the case as quickly as possible,” said Leon Fresco, deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department, “it does undermine the security rationale.”
Trump’s new travel order — which suspended the U.S. refugee program for 120 days and blocked the issuance of new visas to citizens of Iran, Sudan, Somalia, Libya, Somalia and Syria for 90 days — was supposed to take effect March 16, but U.S. District Judge Derrick K. Watson in Hawaii blocked the administration from enforcing the critical sections of it. Early the next day, a federal judge in Maryland issued a similar ruling — leaving the administration with two different cases, in two different appellate circuits, that they would need to get overturned before they could begin carrying out the president’s directive. All roads seemed to lead to the Supreme Court.
But now it seems all but certain that the president’s revised entry ban will stay suspended at least into April, and possibly longer.
Lawyers for the Justice Department filed a notice of appeal in the Maryland case a day after the judge there ruled, but — unlike last time — they did not ask the higher court to immediately set aside the freeze on the new ban. They said they will do so Friday, but those challenging the ban will have a week to respond, and the Justice Department will then be allowed to file more written arguments by April 5.
The Trump administration has been content to let the court battle play out even more slowly in Hawaii, not elevating the dispute beyond a lower-court judge. The Justice Department has not filed a notice of its intent to appeal the ruling, and the next hearing in that case is set for March 29. Justice Department lawyers wrote Thursday that they would appeal to a higher court if that hearing doesn’t resolve in their favor. The courts will ultimately have to decide important questions, including how much authority they have to weigh in on the president’s national security determinations, whether Trump’s order was meant to discriminate against Muslims, and whether and how the president’s and his advisers’ own comments can be used against them.
There could be strategic reasons for pumping the brakes. Stephen W. Yale-Loehr, a professor of immigration law at Cornell Law School, said the Justice Department might be hoping for a favorable ruling from the U.S. Court of Appeals for the 4th Circuit, of which Maryland is a part, before they bring a case before the 9th Circuit, of which Hawaii is a part. A three-judge panel in the 9th Circuit unanimously rejected the administration’s bid to restore Trump’s first entry ban after it was frozen. The 4th Circuit on Thursday scheduled oral argument in its case for May 8.
And the Justice Department could be playing an even longer game, hoping that by the time the case makes its way to the Supreme Court, Neil Gorsuch will have joined the justices and brought to an end what many see as a 4-to-4 split along ideological lines, said Jonathan E. Meyer, a former deputy general counsel in the Department of Homeland Security under Obama who now works in private practice at Sheppard Mullin.
“I think this ultimately goes to the Supreme Court, and I think it is likely to find a Supreme Court that is much more open to the government’s arguments once Judge Gorsuch is confirmed and sworn in,” Meyer said. “So it’s quite possible that part of what is going on right now is slowing things down to allow that to happen.”
The delay, though, undercuts one of the president’s primary arguments for the ban: that it is temporary and needed for national security while the administration reevaluates its vetting procedures for foreign travelers. Officials have had since Jan. 27 to conduct such a review, though Watson’s ruling in Hawaii seems to now stop them from doing so now.
Fresco, the former Obama administration official who works in private practice at Holland & Knight, said he wonders why the administration has not simply unveiled new vetting procedures and done away entirely with a temporary ban — unless its ultimate goal is a long-term ban.
“If they wanted to do a ban, and the ban was supposed to be permanent, then all of this would make sense,” Fresco said.
Asked for comment for this report, a Justice Department spokeswoman referred a reporter to the department’s request for an expedited briefing schedule in the appeal of the Maryland case.
After Trump signed his first entry ban on Jan. 27, the measure took effect so suddenly that people aboard flights were detained and, in some cases, deported, when they arrived at U.S. airports, sparking confusion, protests and legal challenges. To implement the directive — which banned entry to all refugees and citizens of Iraq, Iran, Sudan, Somalia, Libya, Somalia and Syria — the State Department provisionally revoked tens of thousands of visas. Trump wrote on Twitter that such dramatic and sudden steps were necessary because of what might happen if people were given advance warning.
“f the ban were announced with a one week notice, the ‘bad’ would rush into our country during that week,” Trump wrote. “A lot of bad ‘dudes’ out there!”
Judges quickly ruled against the measure, stopping U.S. officials from detaining and deporting those who made it to the United States. Then, on Feb. 3, U.S. District Judge James L. Robart in Washington state froze the order almost entirely. As Justice Department lawyers prepared an appeal, Trump tweeted several times the following day about the consequences of the judge’s decision, even suggesting the judiciary might be responsible if someone were to launch an attack.
“Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision,” he wrote. He added later: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
The Justice Department made a bid to get Robart’s order put on hold, but lost. Several days later, on Feb. 9, they were handed a more significant defeat when a three-judge panel with the U.S. Court of Appeals for the 9th Circuit declared unanimously that Robart was right.
Instead of taking the case even higher, the administration essentially backed down, declaring a new order would be written and then repeatedly putting it off. Trump or White House officials thrice promised a new order was coming, only to delay signing it until the week that followed.
The new order was substantially different from the first, blocking only the issuance of new visas and spelling out a robust list of people who could be exempted. It also removed Iraq from the list of affected countries. But Lee Gelernt, an ACLU lawyer who is involved in the Maryland case, said the government’s delays “at every stage of the Muslim ban process, including issuing the revised order, has suggested that they don’t actually believe that there’s an urgent need for the bans to go into effect.” Fresco said the administration seemed to be prioritizing a long-term win in court, and Trump probably felt “he’s already made his explanation to the American people that he’s tried, that he’s doing as much as he can.”
“The last thing they want to do is have this travel ban issue, especially on an expedited basis, and lose again,” Fresco said.
Former diplomats and national security professionals have long called into question the necessity of Trump’s entry ban as a public safety measure — even in its revised form. More than 130 former U.S. officials, among them Cabinet secretaries, ambassadors and generals, recently sent a letter to the administration warning that the directive would actually damage national security. Internal data available to the administration also appears to be in conflict with the reasons officials have given publicly for it. One report, which analyzed 90 cases of suspected or confirmed foreign-born terrorists, found most became extremists after they got to the United States, as opposed to arriving with nefarious intentions.
The executive order itself says that more than 300 people who came to the United States as refugees are now the subjects of FBI counterterrorism investigations. Separately, it highlights hundreds of people “born abroad” who were convicted of terrorism-related crimes in the United States and points to two separate cases involving refugees from Iraq and Somalia. It also describes the conditions in each of the Muslim-majority countries whose citizens, if the ban were to take effect, would no longer be able to get new visas.
The president has broad authority to set immigration policy, and analysts said it is possible that Trump will ultimately prevail in the Supreme Court. How soon that will be, though, remains decidedly unclear.