Lawyers for the Department of Justice and for refugee resettlement organizations, academics and immigrants who claim they are affected by President Donald Trump’s new and improved travel ban faced off in federal court Wednesday ― in a clash that could once again keep the administration’s travel restrictions on a number of Muslim-majority countries from being enforced on the eve of their effective date.
The Maryland hearing before U.S. District Judge Theodore Chuang was one of at least three scheduled over Trump’s second attempt at a travel ban, which will go into effect at 12:01 a.m. ET on Thursday ― unless it is blocked in the courts.
The lawsuit Chuang considered on Wednesday alleges that Trump’s executive order violates federal law and the Constitution ― including its guarantees of equal protection and freedom from religious discrimination. The challenge also alleges that the president, under the Refugee Act of 1980, cannot downsize the number of refugees to be admitted in the middle of a fiscal year.
Any claim that the ban targets Muslims is baseless, said acting Solicitor General Jeffrey Wall, who argued for the Trump administration, because the order makes no mention of religion. He told the court the new order did away with a provision in the first one that exempted refugees who are religious minorities.
Wall referred to the ban as a “brief pause” for affected travelers and repeatedly noted that the six countries targeted in the retooled ban ― Iran, Libya, Somalia, Sudan, Syria and Yemen ― were also targeted in former President Barack Obama’s update to the visa waiver program.
The government lawyer said the new restrictions are a “step beyond” what the last administration did, but based on the same concerns about the countries’ instability and terrorist activity. He noted that the second executive order included justifications for each country’s inclusion.
But Omar Jadwat, an immigrant rights lawyer with the American Civil Liberties Union, argued that the government was “asking the court to turn a blind eye” to evidence that the primary purpose of this order, like the last one, was to disfavor Muslims.
Among that evidence, Jadwat told Chuang, are campaign statements by Trump about his desire to shut down Muslim immigration, plus post-campaign comments by Trump advisers Stephen Miller and Rudy Giuliani all but admitting that the travel restrictions were meant to zero in on Muslims.
The president signed the travel ban on March 6, following up on a promise to re-work a previous executive order that a court in Seattle stopped in early February ― after a chaotic rollout that led to stranded travelers, protests and dozens of lawsuits nationwide. The new ban, like the previous one, suspends the refugee resettlement program for 120 days and bars certain citizens of six Muslim-majority nations from entering the U.S.
Unlike the first order, the new ban does not apply to Iraqis or to current visa-holders and does not single out Syrian refugees for indefinite exclusion.
Despite Wall’s assurances that the reworked executive order cures the constitutional issues courts identified in the original one, Justin Cox, an attorney with the National Immigration Law Center, said a narrow ruling that only applies to his clients would leave out many others who are equally harmed by the restrictions ― and wouldn’t resolve the government’s broad condemnation of Islam.
The judge asked Jadwat whether he would need to conclude that the administration’s claim that the order fulfills a national security purpose “is a sham” before he can agree with the plaintiffs, who want the order put on hold while the litigation over its legality advances. The lawyer didn’t answer outright, but replied that the intent is the same as it was for the first order and the government’s own reports contradict the argument that the ban is needed.
After he heard from the two sides in the dispute, Chuang declined to issue a ruling from the bench, but said he expected to rule “hopefully today but not necessarily.”
In court filings and publicly, opponents of the ban have charged that the scaled-back executive order is simply the same “Muslim ban” that Trump promised on the campaign trail ― just repackaged to pass constitutional scrutiny.
The Maryland lawsuit was filed by the ACLU, ACLU of Maryland and the National Immigration Law Center on behalf of several refugees and nationals from the targeted countries, as well as two refugee-focused organizations, the International Refugee Assistance Project and HIAS. Another plaintiff is the Middle Eastern Studies Association, which says the travel ban affects scholars and students who are associated with it and are worried about traveling abroad for fear of being stranded.
Other organizations and states are making their own efforts to halt the new order before it goes into effect. In Honolulu, a federal judge heard arguments Wednesday afternoon over the ban, which the state of Hawaii contends harms tourism, in addition to visitors and activities that are unique to the state.
Separately, the states of Washington and Minnesota, which spearheaded the suit that led to the freeze of the first executive order, asked U.S. District Judge James Robart in Seattle to apply the same temporary restraining order he issued in February to the new ban. California, Maryland, Massachusetts, New York and Oregon have joined the two states in the legal effort.
A ruling in one or all three of these challenges is expected later on Wednesday, and Trump could very well weigh in afterward in the way he often does: on Twitter.
“The only way not to have an unconstitutional policy in this area is not to have a Muslim ban, it’s as simple as that,” Cecillia Wang, the deputy legal director of the ACLU, told reporters ahead of Wednesday’s hearing in Maryland.
Elise Foley reported from Greenbelt, Maryland. Cristian Farias and Willa Frej reported from New York. This article has been updated with details from the Maryland hearing.