Below is my column in the Hill Newspaper on third round of litigation over the immigration orders issued by President Donald Trump. On Friday, in Honolulu, U.S. District Judge Derrick Watson converted the earlier temporary restraining order into a preliminary injunction. With the two decisions in Hawaii and Maryland, the appeals should move on an expedited basis back to the Supreme Court (which is expected to dismiss the second immigration case from the second round of litigation this week). Like T3, EO3 could be named “Redemption” as the Administration gears up for what is likely (and hopefully) the final round in this series.
Here is the column:
The new round of court opinions this week blocked parts of President Trump’s latest immigration executive order, known as travel ban 3.0. This litigation confirms everything that most of us hate about sequels that replay earlier plots and repeat material. Each new sequel tends to get more implausible with time with the appearance of previously killed villains (think “Terminator”), new “celestial” fathers (think “Guardians”), or previously destroyed evil organizations (think “Avengers”).
The travel ban 3.0 litigation is, to quote the much sequeled Dr. Evil, “all of that and a bag of chips.” Judges in Maryland and Hawaii have enjoined a Trump travel order for the third time, replaying the same arguments as the earlier opinions, despite a new set of facts and language. Worst yet, we never actually got to a final battle royale in these cases in travel ban 1.0 and travel ban 2.0. Like the “Avenger” movies, we got to the long-awaited climax before the Supreme Court, only to have the court dismiss the case as moot. We were left with one of those teasers after the credits of a new threat looming in the future.
Welcome to travel ban 3.0, much like T3 but without the aging cyborg. Both injunctions will trigger another nail biting, cliff hanging series of appellate decisions. However, in reading these opinions, you will likely feel like you have seen this one before. This series began on Jan. 27 with the first executive order. The poor drafting of that order was only matched by the even worse execution and defense of the order. Various judges found the order as motivated by an anti-Muslim “animus” and replayed Trump’s most incendiary comments from the campaign about a “Muslim ban.” Travel ban 1.0 was soon replaced by travel ban 2.0 on March 6, which was itself enjoined pending a final decision before the Supreme Court.
The Supreme Court then reversed the lower courts on their injunctions except for protections for immigrants with “bona fide relationships” in the United States. However, shortly before oral argument, the court mooted one of the two cases after travel ban 2.0 died of natural causes with the expiration of its proscribed 90-day period. (The remaining case is likely to be dismissed when the rest of the second order expires.)
The new order issued Sept. 24 contains a new list of countries that dropped some of the original countries while adding new non-Muslim countries. For the record, I have long criticized the earlier orders against the travel orders as relying too heavily on campaign statements and too little on existence case law. I believe that the administration would have largely prevailed on the second order if the litigation were not mooted.
The new opinions in Hawaii and Maryland offer basically the same narrative while ignoring the new factual foundation. While both judges are respected jurists and reached good-faith conclusions, the opinions work too hard to ignore material changes that undermine the earlier holdings on religious and nationality discrimination.
In Hawaii, District Court Judge Derrick Watson begins with a curious sports analogy that “professional athletes mirror the federal government in this respect: They operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with [the third executive order].” From the perspective of the White House, of course, Watson himself could be viewed as violating those rules in acting like an active player rather than a referee in the game.
Watson sees the executive order as still discriminating on the basis of nationality. Yet, it is impossible to specify inadequate entry procedures without designating the responsible and high risk countries. If that is discrimination based on nationality, most procedural rules addressing the failures of individual countries would seem to fail under the test, including orders from past presidents.
In Maryland, District Court Judge Theodore Chuang notably only enjoined the order as to the Muslim countries and only as to individuals without “a bona fide relationship with an individual or entity in the United States.” As such, the court actually allowed much of the order to be executed. Yet, Chuang held that travel ban 3.0 failed to “cure” the “religious animus” behind the earlier travel ban.
Chuang seems to place a heavy burden on the administration to “prove the negative,” or, in this case “prove you are not anti-Muslim.” Chuang admits that Trump has made “positive” statements about Muslims, but he simply rejects those statements in favor of Trump’s more inflammatory statements. He noted, for example, Trump’s tweet where he praised a discredited story about shooting Muslims with bullets dipped in pig’s blood as a deterrent to Islamic extremism.
There is no question that President Trump continues to make the defense of these orders more difficult with his controversial tweets. However, the materiality of these statements has become more and more forced with each new generation of agency findings. Agencies studied the vetting procedures for months and reached a consensus on the changes that they deemed necessary for border protection. Such factual findings are normally accorded deference by courts, which are bound not to substitute their judgment for policy or political choices.
Chuang notably found that the administration may have met the “low bar” of establishing that entry from these countries would be “detrimental to the interests of the United States.” However, he insisted that the administration did not “explain why the broad travel ban is necessary in a way…unrelated to religious animus.” It is not clear how the administration is supposed to prove that, particularly after shouldering the burden on the detrimental impact to the nation’s security. The administration cited “inadequate identity management protocols, information sharing practices, and risk factors,” including need technological improvements.
While the plot and development may seem painfully familiar, viewers can only hope that cases will actually reach a final culmination. It is a moment reminiscent of John Connor’s frustration in T3 when he told the terminator, “No, you shouldn’t exist…We stopped judgment day.” The response of T3 could easily have come from travel ban 3.0: “You only postponed it. Judgment day is inevitable.” So stay tuned.