Like yesterday’s ruling against the travel ban by a federal district court in Hawaii, Judge Chuang also ruled that Travel Ban 3.0 violated the 1965 Immigration and Nationality Act, which forbids discrimination in the issuance of immigration visas on the basis of nationality. His opinion includes some strong rebuttals to various defenses of the legality of the order under the INA. For example, he criticizes the distinction the administration seeks to make between visas and the right to enter, by noting that “receiving an immigrant visa is meaningless without later receiving permission to enter” and that “the denial of entry to immigrants would generally have the effect of causing the denial of immigrant visas” as well.
Like the Hawaii decision, the Maryland ruling is limited to citizens of the six Muslim-majority nations covered by Travel Ban 3.0, and excludes North Korea and Venezuela. For reasons already noted, this distinction has little practical significance.
Both rulings also impose nationwide restrictions on implementation of the new travel ban order (a temporary restraining order in the Hawaii case; a temporary injunction in Maryland). Technically, both are just preliminary decisions temporarily blocking implementation of the travel ban until the court can reach a final decision on the merits. But both make clear that the plaintiffs are highly likely to prevail in any such final ruling.
One key difference between the two decisions is that the Maryland ruling only applies its injunction to persons with a “bona fide” connection to persons or entities in the United States. In this respect, it follows the Supreme Court’s June 26 decision limiting the lower court injunctions against Travel Ban 2.0 to persons with such a connection. Like the Supreme Court injunction, the limitations on the Maryland one are based on a “balance of equities.” For reasons I explained here, we should not assume that this limitation means that either the Supreme Court majority or Judge Chuang necessarily believe that Travel Ban 3.0 is legal as applied to persons who lack such a connection. “Likelihood of success on the merits” of the underlying claim is just one of several factors that plaintiffs are required to meet in order to qualify for a preliminary injunction. It could be that the Supreme Court majority believed that foreigners lacking a “bona fide” connection fail one or more of the other criteria.
Both the Hawaii ruling and the Maryland decision reinforce my view that Travel Ban 3.0 is vulnerable to most of the same legal challenges as its predecessors. At the very least, they make clear that the legal battle over Trump’s travel bans is far from over. At the same time, it is important to remember that this is just the beginning of what will likely be prolonged litigation over Travel Ban 3.0. Both rulings against it are likely to be appealed, and the issue might well return to the Supreme Court. It is hard to make any definitive predictions about what the outcome will be when and if that happens.