Justice Department lawyers were back in court on Monday to defend President Donald Trump’s latest attempt to ban travel to the United States by nationals of several Muslim-majority nations.
The new travel restrictions are set to fully take effect on Oct. 18. Challengers have once again raced to court to seek immediate court action to try to stop that from happening. US District Judge Theodore Chuang, who sits in Greenbelt, Maryland, scheduled arguments with a few days to spare. He did not announce a ruling from the bench Monday, and only said that he would issue a decision as soon as possible.
Arguments on Monday over the challengers’ request for a preliminary injunction blocking enforcement of Trump’s directive focused less on what Trump had said in the past about wanting to stop Muslims from traveling to the United States — statements that were a central feature of court arguments over his previous orders — but rather about how far into the future those remarks could taint any actions that he took on immigration.
Chuang expressed concern that if the challengers succeeded in their religious discrimination claims, there was no action that Trump could take, even one rooted in legitimate, nondiscriminatory national security reasons, that wouldn’t face a constitutional challenge. Where was the line, the judge asked.
Omar Jadwat, director of the American Civil Liberties Union’s Immigrants' Rights Project and a lawyer for one set of challengers, replied that he didn’t know where the line was. However, he said, wherever that line was, this case wasn’t close to it. There was a clear connection between Trump’s earlier executive orders — which multiple courts found were likely to fall to constitutional and other legal challenges — and the latest proclamation, he said.
“What we have before us today is the same core policy as” the second travel ban, Jadwat said. “The result is just as the president promised: a bigger, tougher version of the same ban.”
Trump’s proclamation, signed on Sept. 25, places indefinite travel restrictions on five Muslim-majority nations that were covered under his previous executive orders: Iran, Libya, Somalia, Syria, and Yemen. It imposed new restrictions on three countries – North Korea, Venezuela, and Chad, which is also Muslim-majority – and removed them for Sudan, which was previously covered. The administration argued the restrictions were based on national security concerns about how foreign governments shared information about travelers with the United States.
Chuang asked Justice Department attorney Hashim Mooppan about challengers’ arguments that the Trump administration inconsistently applied the standards established to determine which countries should be included on the list. Mooppan, the deputy assistant attorney general in the Civil Division, said the country reviews were subject to the discretion of officials at the Homeland Security Department and State Department, and that failing to meet all of the criteria did not automatically mean that a country faced restrictions, he said.
However, he said, there was “not a shred of evidence” that Acting Homeland Security Secretary Elaine Duke or Secretary of State Rex Tillerson harbored anti-Muslim bias.
Chuang pressed Mooppan about the fact that the government would not share a report that Duke submitted to Trump on Sept. 15 outlining her recommendations of countries to include in the new ban. Chuang invoked a case that the Trump administration has been unable to shake throughout court proceedings over the previous executive orders: Korematsu v. United States, in which the US Supreme Court upheld the constitutionality of interning Japanese Americans during World War II.
Judges presiding over challenges to Trump’s earlier orders on immigration have asked about comparisons to Korematsu, given the administration’s arguments that courts should not look beyond the text of Trump’s orders in evaluating whether there was anti-Muslim bias behind them. Chuang referred to Korematsu on Monday because at the time it was argued, the US solicitor general knew about an intelligence report that undermined the rationale for internment. The Justice Department in 2011 issued a statement admitting to the mistakes made in the Korematsu case; the statement was signed by then-acting solicitor general Neal Katyal, who has been a lead attorney in challenging Trump’s travel ban orders.
Chuang asked the administration’s lawyers if the government would be obligated to disclose information in the report that was inconsistent with what was presented to the court. Mooppan said the report was privileged because it represented protected presidential communications and internal executive branch deliberations. However, he said, the proclamation was accurate in stating that the eight countries covered under the proclamation were included in the Sept. 15 recommendations.
The challengers argue that the latest directive violates the US Constitution’s prohibitions on religious discrimination, as well as the Immigration and Nationality Act, known as the INA. In signing the proclamation, Trump was effectively rewriting the INA, Justin Cox, a lawyer at the National Immigration Law Center who represents one set of challengers, argued Monday. No previous president had adopted such sweeping immigration prohibitions, Cox said.
Mooppan countered that the INA gave the president leeway to go beyond the immigration rules laid out by Congress.
The US Supreme Court earlier this month vacated a ruling by the US Court of Appeals for the 4th Circuit — the appeals court that governs the Maryland federal district court — finding that challengers were likely to succeed in their case against the second travel ban. Chuang on Monday asked lawyers on both sides whether he could still look to the 4th Circuit’s opinion, even if it was no longer binding on him. Mooppan and lawyers for the challengers both said that he could.
Federal judges in Washington, DC, and Seattle are scheduled to hear arguments in other challenges to the proclamation in late October and early November. A Hawaii federal district judge has said he’ll consider a temporary restraining order request without hearing arguments, which means that he could also issue an order before the ban takes effect on Oct. 18.