For the second time in the span of one day, President Trump’s latest attempt to bar entry to the U.S. by foreign nationals from Muslim nations has been blocked by a federal court. Late Monday night, a Maryland judge imposed a nationwide order against enforcement, in a ruling that was broader than one issued earlier in the day by a federal judge in Hawaii.
In a 91-page ruling, U.S. District Judge Theodore D. Chuang of Greenbelt, MD, ruled that the third Trump executive order is likely to be struck down as a discriminatory ban on Muslims, a violation of the Constitution. In Honolulu, District Judge Derrick K. Watson did not rule on the constitutional question.
Both judges did find that the challengers to the third order were likely to win their claim that the third version exceeded presidential power under federal immigration laws.
Judge Chuang, who earlier had ruled against President Trump’s second version because of a finding of religious bias, reaffirmed that conclusion in analyzing the third approach. Actually, the judge said, both of the first two such presidential orders would have failed the religion test, so it was “common sense” that the third “stands in their shadow.” The latest version, different in some respects, does not cure the constitutional problems in the earlier ones, the judge said.
Noting that the third version is “permanent,” unlike the earlier tentative versions, the judge said that feature was actually forecast at the time two prior versions were issued. The President himself had talked even in January about adopting “a very, very strict ban” and White House aides in March had talked about extending the temporary second version.
Moreover, Judge Chuang said he had found “substantial reasons to question” whether the latest approach – any more than the earlier versions – actually had national security as its primary purpose. The new review by federal agencies that led to the third ban, the opinion said, was “at least partially foreordained” because the President, in ordering that new study in March, had directed that the result be to bar entry by categories of foreign nationals, not just individuals found ineligible to enter.
The third version, the judge summed up, “cannot be framed as an independent product of bureaucratic operation,” but rather was a product of the mandate the President gave to the agencies.
Judge Chuang’s order had a stronger quality than the one issued in Hawaii by Judge Watson. The Maryland order was a “preliminary injunction,” which has a more last quality, than a “temporary restraining order” such as the one issued in Honolulu. Judge Watson has indicated he will consider whether to turn the temporary order, which lasts only a matter of days, into an injunction.
In another respect, however, Judge Chuang limited his order against enforcement in a way that Judge Watson did not. The only foreign nationals who will gain a right to enter the U.S. from the six designated Mideast nations covered by the presidential order are those who have a claim of a link to a person, family or organization in this country.
The judge took that limitation from action this past summer by the Supreme Court, when it was considered how much of President Trump’s second version could be enforced. The Justices said that the president could not exclude those with family or organizational ties to persons or entities in the U.S.
Judge Watson had not included that limitation in his order earlier Monday. Judge Chuang explained that he did so in order to show some respect for the national security claims that the Trump Administration had made for adopting the entry restrictions.
The Maryland judge defined family ties in a broader way than the Administration had done when that question arose during court review of the second Trump version. Under the new Maryland order, the third ban on entry cannot apply to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.”
That is a definition that the Supreme Court did not second-guess, although it did not rule directly on the question.
Judge Chuang’s order on organizational ties did follow a limitation that the Supreme Court had temporarily imposed: it does not allow refugees to enter the U.S. when their only tie to this country is that they have a promise of resettlement by a refugee relief agency. But the judge did allow entry of employees or meeting-attendees for organizations had not joined in the Maryland lawsuit against the Trump order.
The Maryland order does not apply to two countries that the latest Trump order added to the list of covered nations: North Korea and Venezuela, for reasons limited to those two nations.
Avoiding a constitutional fight over whether the judge had power to limit actions by President Trump himself, Judge Chuang exempted him. But the Maryland order will have full effect because it does bar enforcement by federal agencies.
The third version of the presidential order was due to go into effect at one minute after midnight Monday. The orders by the judges in Maryland and Hawaii prevented that. Judge Chuang issued his order under Monday’s date, but it was made public early on Tuesday.
The Trump Administration had said on Monday that it would pursue a quick appeal of the Hawaii order, and is thus expected to do so to challenge the Maryland order. Both judges refused to delay their orders to give the government a chance to go to a higher court, so it must act very rapidly if it hopes to get an early chance, with permission from a higher court, to enforce the new approach in full.
