Two federal judges slapped down President Trump's latest travel ban hours before it was scheduled to go into effect, but for different reasons.
The Maryland judge who on Wednesday blocked the ban on travel from six Muslim-majority countries cited what he views as Trump's anti-Muslim motivation. Judge Theodore D. Chuang allowed citizens with "bona fide" relationships from those countries to travel to the U.S., lining up with the Supreme Court, which made a similar ruling on a previous travel ban this summer. The countries affected are Chad, Iran, Libya, Somalia, Syria, and Yemen.
Meanwhile, Hawaii Judge Derrick K. Watson on Tuesday said the new rules violate federal immigration law. In his decision, he said the Trump administration's new guidance "suffers from precisely the same maladies as its predecessor" because it lacks the proper justification to exclude foreign nationals.
Watson zeroed in on the intent of the newest ban — saying that excluding "the entry of more than 150 million [foreign] nationals from six specified countries would be 'detrimental to the interests of the United States," meaning that Trump lacks sufficient evidence that admitting the foreign nationals would be detrimental to the U.S., contrary to his claim.
Neither judge included travel from North Korea and Venezuela in their decisions. Both are the same judges whose decisions on the previous travel ban were challenged all the way to the Supreme Court. The high court dismissed the case against the travel ban after the 90-day order ended.
On Wednesday, the Maryland judge addressed the plaintiffs' claim that the travel ban violates the Constitution's Establishment Clause head on and said Trump's addition of Chad, North Korea, and Venezuela to the ban have done nothing to make the courts believe that the order is anything other than a "Muslim ban" that Trump suggested on the 2016 campaign trail.
Chuang wrote that the Trump administration's new restrictions are not "sufficiently independent" from the last travel ban to prove a "purposeful, persuasive" change in the policy's purpose.
"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. "The court therefore finds that plaintiffs have demonstrated that they are likely to succeed on the merits of their Establishment Clause claim."
Chuang's opinion also noted that the law provides Trump the authority to exclude foreigners if he merely deems the foreigners' presence detrimental to the "interests" of the U.S. and Trump does not need to show that the foreigners would harm national security, for example. Chuang's decision to spotlight that distinction shows that his attention to the threshold required for Trump to take action may be different than his colleague in Hawaii.
Josh Blackman, a South Texas College of Law professor who has previously said the Trump administration looks likely to prevail at the Supreme Court, tweeted that he thinks both judges' rulings against the new guidance err in applying strict scrutiny to the ban.
The Maryland judge appeared cognizant that his ruling will end up before the Supreme Court again. Chuang specifically tailored his stay of Trump's ban as "extending only to individuals with a bona fide relationship with an individual or entity in the United States." That limitation is similar to the Supreme Court's June order allowing an earlier version of Trump's ban to proceed in a limited fashion.
The Justice Department has already announced its intention to challenge the Hawaii judge's decision, and the litigation over Trump's travel ban looks likely to arrive back at the Supreme Court after stops in federal appeals courts at the 9th and 4th Circuits.