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The Court Fight Over Trump’s Travel Ban Isn’t Over

A federal judge ruled that the Supreme Court’s 2018 decision that allowed the ban to take effect didn’t actually end things.

Posted on May 3, 2019, at 12:28 p.m. ET

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WASHINGTON – When the Supreme Court ruled last summer that President Donald Trump's travel ban could take effect, restricting travel to the United States from a group of majority-Muslim countries, it seemed like the end of the fight.

Not so.

A federal judge in Maryland ruled late Thursday that a revised set of lawsuits filed by groups that sued over the ban last time could go forward, meaning that Trump's travel ban could be in trouble once again.

The Supreme Court established the standard for analyzing constitutional claims in these cases going forward, US District Judge Theodore Chuang wrote, but he found that the challengers were in a different position than they were when the cases went before the justices previously.

Chuang's decision means the plaintiffs can seek documents and other evidence from the government about the origin and enforcement of the travel ban, something that didn't happen last time because they asked for immediate injunctions based on the record they already had. The challengers, which include civil rights and immigration advocacy groups, say they're looking forward to digging into that process.

"This is a very significant decision because it clarifies that the Supreme Court's decision was a preliminary decision ... on a very limited record," said Sirine Shebaya, a lawyer with Muslim Advocates, one of the groups that sued. "It shows that the legal fight's not over on this question. It also allows us to use this process to shine a light on what was happening leading up to the issuance of the proclamation — it has really been shrouded in secrecy."

A spokesperson for the Justice Department declined to comment.

Chuang's opinion highlights a few things that are different now. The revised lawsuits include new information about how the administration has enforced the ban since the Supreme Court let it take effect in June 2018 — for instance, allegations that the government hasn't adopted a formal process for people seeking waivers from the travel restrictions, and hasn't come up with a process for deciding whether the restrictions are needed in the future, both of which were supposed to happen under the terms of Trump's proclamation.

The Supreme Court's review was based on a record "representing a snapshot in time and does not necessarily preclude a different determination at a later stage of the case on a more fulsome record," the judge wrote.

When the travel-ban cases went before the Supreme Court, the issue was about whether preliminary injunctions blocking the ban could stand. In arguing for early injunctions, plaintiffs have to argue that they're likely to win based on the facts they have on hand — they don't get to seek evidence first from the defendant (in this case, the Trump administration). The Supreme Court ruled the challengers failed to meet that burden.

In a 5–4 decision, Chief Justice John Roberts wrote that in evaluating a constitutional challenge to the proclamation, courts had to decide if there was a "facially legitimate and bona fide reason" for the policy. The text of Trump's proclamation didn't discuss religion, making it "facially legitimate." For the "bona fide" test, the Supreme Court ruled that judges could potentially "look behind" the text of the proclamation to decide if it was based on reasons other than unconstitutional ones, and that the Trump administration presented a "sufficient national security justification."

This time, the plaintiffs didn't seek an early injunction. The government filed a motion to dismiss the case, and when that happens, the court's analysis tilts in favor of the plaintiffs — judges assume that the facts in a lawsuit are true, and decide whether they're enough to let a case proceed. Chuang ruled that they were.

"Plaintiffs have provided detailed allegations for why the Proclamation is not rationally related to its stated national security interests and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims," Chuang wrote.

The judge found that the lawsuits included specific claims countering the government's position that the ban serves a national security function, such as allegations that the administration inconsistently applied its own criteria in deciding which countries would go on the list, and evidence about the alleged lack of a formal waiver process.

Chuang highlighted quotes from Trump that have been at the core of the legal fight, including statements before and after the election when he called for a Muslim ban and defended earlier iterations of the ban that federal judges across the country rejected as likely unconstitutional and discriminatory.

The cases have a long way to go. The exchange of evidence can take months. In order to win, Chuang wrote, the challengers "face the tall order of ultimately presenting evidence that not only undermines, but specifically refutes" the government's claim that the proclamation was needed for national security.

Finally, whoever loses is likely to appeal, and could try to take the fight back to the Supreme Court.

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