As previously discussed, I believe that the odds favor the Administration in prevailing in the long run. It could face a mix of decisions on the lower courts as it did with the first order. However, this order is a better product and presumably the Justice Department will markedly improve its performance in the defense of the order.
I agree with Trenga’s analysis, obviously, on the controlling precedent. Judge Trenga notes:
“In determining whether the Plaintiffs have made the required showing, the issue is not whether EO-2 is wise, necessary, under- or overinclusive, or even fair. It is not whether EO-2 could have been more usefully directed to populations living in particular geographical areas presenting even greater threats to national security or even whether it is politically motivated.”
He also noted that the modifications of the first poorly drafted order has helped the Administration: “[T]he substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that
Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose.”
The ruling comes at a time when the Administration has appealed the ruling of a judge in Maryland against the order to the United States Court of Appeals for the Fourth Circuit. This will now present divided district courts on the question, but I would give the Trenga opinion the edge in the long run.