A federal judge on Tuesday blocked the Trump administration from enforcing key parts of President Donald Trump's latest travel ban, finding that the administration’s new directive suffered from the same legal deficiencies as his previous orders.
US District Judge Derrick Watson wrote that Trump's Sept. 24 proclamation, which was set to take effect Oct. 18, "plainly discriminates based on nationality." Watson issued a nationwide order blocking enforcement of travel restrictions on nationals of six Muslim-majority nations covered by the president's directive: Chad, Iran, Libya, Syria, Yemen and Somalia.
The judge, who sits in Honolulu, did not block the travel restrictions placed on North Korea and Venezuela. The challengers — the state of Hawaii and the Muslim Association of Hawaii, along with two American citizens and a legal permanent resident who say the ban would keep them separated from family — had not asked for an injunction with respect to those countries.
A State Department official said in an email that embassies and consulates have already been instructed to resume "regular processing" of visas for nationals from the six countries covered by Watson's order. Reuters first reported the State Department response.
A federal judge in Maryland issued an order late Tuesday halting enforcement of the travel ban for the same six countries covered under Watson's order. US District Judge Theodore Chuang, who heard arguments on Monday in Greenbelt, Maryland, limited his nationwide preliminary injunction order, however, to visa applicants "who have a credible claim of a bona fide relationship with a person or entity in the United States" — a nod to the limits that the US Supreme Court earlier this year placed on enforcement of the second travel ban while legal challenges were pending.
Justice Department spokesman Ian Prior said in a statement that the Trump administration will appeal Watson's decision. He did not specify if the government would take the case to the US Court of Appeals for the 9th Circuit, which covers Hawaii, or try to directly petition the US Supreme Court.
"Today's ruling is incorrect, fails to properly respect the separation of powers, and has the potential to cause serious negative consequences for our national security. The Department of Justice will appeal in an expeditious manner, continue to fight for the implementation of the President's order, and exercise our duties to protect the American people," Prior said.
The White House released a statement calling the order "dangerously flawed," and said that the "restrictions are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our Nation."
Hawaii Attorney General Doug Chin said in a statement that Tuesday’s ruling “is another victory for the rule of law. We stand ready to defend it.”
Watson was one of the judges who previously blocked enforcement of Trump's second travel ban. He wrote in Tuesday's order that the latest directive "suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be 'detrimental to the interests of the United States.'"
He also found that the directive "improperly uses nationality as a proxy for risk." The proclamation didn't make a finding that nationality alone meant that citizens of the covered countries posed a higher security risk, the judge wrote.
Watson did not touch on the challengers' claims that the ban violated the US Constitution's prohibitions on religious discrimination. Instead, he focused on allegations that the president's proclamation violated sections of the federal Immigration and Nationality Act. The directive's findings about the risks posed by problems with how foreign governments shared information with the United States about travelers "do not fit the restrictions that the order actually imposes," Watson wrote.
The Immigration and Nationality Act gave the president authority to make decisions about who could enter the United States, he wrote, but "these provisions do not afford the President unbridled discretion to do as he pleases."
Watson wrote that it was "troubling" that the government continued to argue that the president's orders could not be reviewed by the courts.
"Not only do they ask this Court to overlook binding precedent issued in the specific context of the various executive immigration orders authored since the beginning of 2017, but they ask this Court to ignore its fundamental responsibility to ensure the legality and constitutionality of [the third travel ban]," the judge wrote.
Chuang, however, did address the Maryland challengers' arguments that the proclamation violated the constitution's Establishment Clause, which bars the government from favoring one religion over another. He wrote that the new proclamation was not "sufficiently independent" of the second travel ban order, and Trump's earlier statements calling for a ban on Muslim immigration to the United States remained a problem for the government.
"The Court ... cannot find that a 'reasonable observer' would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban," Chuang wrote. He cited a tweet that Trump posted in August referring to a debunked story about a general who shot Muslims with bullets dipped in pig's blood — "a method hostile to Islam," the judge wrote.
Omar Jadwat, director of the American Civil Liberties Union’s Immigrants' Rights Project and a lawyer for one set of challengers, said in a statement that, "President Trump’s latest travel ban is still a Muslim ban at its core. And like the two before it, this one is going down to defeat in the courts. Religious discrimination with window dressing is still unconstitutional."
Legal challenges to the proclamation are also pending in the District of Columbia, and Seattle. Hearings in the other cases are scheduled for late October and early November.
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