ABC News(WASHINGTON) — President Trump’s executive order banning travel from six majority-Muslim nations suffered a new round of blows overnight as two federal judges issued different rulings stopping it from moving forward, at least temporarily.
There are separate courses of action in the two cases, the first in Hawaii and the second in Maryland. There are still two outstanding motions for restraining orders in Washington state.
Next steps in Hawaii
A federal judge in Hawaii, Obama-appointee Derrick K. Watson, issued a temporary restraining order (TRO) against the latest iteration of the travel ban late Wednesday night.
If the Trump administration seeks to appeal the TRO, it would go right back to the appeals court where the administration already suffered a pretty thorough defeat in the appeal of the first order. That’s because the first travel ban was challenged in Washington State, which falls into the same circuit court — the 9th — as Hawaii.
Unless the Trump legal team can figure out a way to get the court to agree to go straight to a hearing of 11 judges, it will start again with a motions panel of three judges, which is what happened the last time.
That said, it would be three different judges this time around. The current motions panel for the month of March in the 9th Circuit is made up of two Obama appointees and one George W. Bush appointee.
Another possibility is for the administration to wait to see what the rulings say on two pending motions in Washington and then evaluate strategy.
Whatever they do, the nationwide TRO is going to remain in place while they figure it out.
How Maryland does – and doesn’t – differ
U.S. District Judge Theodore Chuang in Maryland handed down a similar ruling early Thursday morning but issued a narrower injunction, focused solely on section 2(c) of the new executive order, which is the provision that imposes the 90-day pause on the issuance of visas to citizens of the six majority-Muslim countries.
The Maryland decision imposes a nationwide preliminary injunction, as opposed to the slightly more perishable TRO, which means that it will remain in place indefinitely until it is either lifted by this judge or overturned by a higher court.
Like the Hawaii judge, Chuang ruled that Trump and his surrogates’ statements during the campaign and surrounding the issuance of the first and second orders could be considered as evidence of alleged religion-based discriminatory intent, specifically citing the statements of Trump, former New York City Mayor Rudy Giuliani and current White House senior adviser Stephen Miller.
Chuang, an Obama appointee, wrote that he “should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban. The question, however, is not simply whether the Government has identified a secular purpose for the travel ban. If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated.”
“In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban,” he wrote.
The Trump team could choose to appeal the Maryland ruling in the 4th Circuit Court rather than going back to the 9th Circuit, if they like their chances better. Or they can opt to pursue the cases in both. But it would take two appellate victories to reinstate the order, because both courts applied their rulings nationwide.
If they decide to move forward in both, it could result in a conflict between the two circuits, which could pave the way to a review by the Supreme Court.
How Trump’s words could hurt
In addition to looking at what Trump and key aides and surrogates said about the ban during the campaign, the judges and appeals courts may soon be looking at his more recent comments about the ban as well.
At a campaign-style rally in Nashville, Tennessee, shortly after the Hawaii decision was announced Wednesday night, Trump may have given the judges, and those challenging the executive order, more to consider.
“The order he blocked was a watered-down version of the first order that was also blocked by another judge and should have never been blocked to start with,” Trump said.
“Let me tell you something: I think we have to go back to the first one and go all the way, which is what I wanted to do in the first one. The danger is clear, the law is clear, the need for my executive order is clear,” he added.
Trump said the ruling makes the United States look “weak” and vowed to take the case “as far as it needs to go, including all the way up to the Supreme Court.”
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