White House press secretary Sean Spicer confirmed Thursday that the Trump administration plans to appeal rulings from two federal judges that have temporarily blocked the revised travel ban.
“The danger is real and the law is clear,” Spicer said.
A ruling by a federal judge in Hawaii Wednesday resulted in a temporary restraining order nationwide, hours before it was set to go into effect. In a decision published Thursday morning, another federal judge in Maryland specifically blocked the 90-day ban on immigration for citizens of six Muslim-majority countries.
Both judges cited Trump’s statements about Muslims during the presidential campaign as part of their rulings.
Spicer indicated that the administration intends to appeal the Maryland decision to the 4th Circuit Court of Appeals “soon,” and will seek “clarification” on the Hawaii ruling before heading to the 9th Circuit Court of Appeals.
In a 43-page ruling, US District Court Judge Derrick Watson, who presides in Honolulu, concluded in no uncertain terms that the new executive order failed to pass legal muster at this stage and the state had established “a strong likelihood of success” on their claims of religious discrimination.
Trump decried Watson’s ruling during a rally Wednesday night in Nashville, introducing his statement as “the bad, the sad news.”
“The order he blocked was a watered-down version of the first one,” Trump said, as the crowd booed the news.
“This is, in the opinion of many, an unprecedented judicial overreach,” he added, before pledging to take the issue to the Supreme Court if necessary.
The practical effect of Watson’s ruling — which applies nationwide — is that travelers from six Muslim-majority countries and refugees will be able to travel to the US.
Unlike the previous executive order, the new one removed Iraq from the list of banned countries, exempted those with green cards and visas and removed a provision that arguably prioritizes certain religious minorities.
The new ban was announced earlier this month and was set to take effect Thursday. It would have banned people from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the US for 90 days and all refugees for 120 days.
“The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed,” Watson wrote.
“Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries,” Watson added. “It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%.”
“It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam,” Watson added. “Certainly, it would be inappropriate to conclude, as the Government does, that it does not.”
“When considered alongside the constitutional injuries and harms … and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ (request to block the new order),” Watson wrote.
The Justice Department said it will defend the new travel ban.
“The Department of Justice strongly disagrees with the federal district court’s ruling, which is flawed both in reasoning and in scope. The President’s Executive Order falls squarely within his lawful authority in seeking to protect our Nation’s security, and the Department will continue to defend this Executive Order in the courts,” DOJ said in a statement Wednesday night.
Judge points to cable news comments
After Trump initially blasted a federal judge in Seattle on Twitter for blocking the original travel ban, and several other federal courts halted its implementation last month, the White House went back to the drawing board for over a month and rewrote the ban — hoping this one would survive legal scrutiny.
Yet certain statements made by Trump’s senior advisers have come back to bite the administration in court.
Both Watson and Judge Theodore Chuang in Maryland brought up specific statements made by the President and Stephen Miller, one of his top policy advisers and a reported architect of the original order, in cable news interviews.
Trump made plain his opposition to Islam in an interview with CNN’s Anderson Cooper last year, asserting: “I think Islam hates us.”
Cooper asked then-candidate Trump in the interview to clarify if he meant Islam as a whole or just “radical Islam,” to which Trump replied, “It’s very hard to separate. Because you don’t know who’s who.”
The judge cited this interview as an example of the “religious animus” behind the executive order and quoted Trump telling Cooper: “We can’t allow people coming into this country who have this hatred of the United States.”
Likewise, the decision cited an interview Miller had on Fox News following the legal struggles of the first executive order last month, which the legal opponents of the ban have emphasized repeatedly.
In a February interview, Miller downplayed any major differences the new executive order would have from the first and said it would be “responsive to the judicial ruling” holding it up and have “mostly minor technical differences.”
“Fundamentally, you’re still going to have the same basic policy outcome for the country,” Miller added.
“These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose,” Watson wrote.
“Any reasonable, objective observer would conclude, as does the court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims,” he added.
Chuang agreed.
“These statements, which include explicit, direct statements of President Trump’s animus toward Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the first executive order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban,” Chuang wrote on Thursday.
“In particular, the direct statements by President Trump and (former New York City Mayor Rudy) Giuliani’s account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to constitute dangerous territory in order to approximate a Muslim ban without calling it one precisely the form of the travel ban in the first executive order.”
Changes not enough, judge says
While Watson signaled that this temporary freeze of the travel ban may not last forever, he nevertheless concluded that the changes made between the first and second versions of the travel ban weren’t enough.
“Here, it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation,” he wrote. “Based upon the current record available, however, the Court cannot find the actions taken during the interval between revoked Executive Order No. 13,769 and the new Executive Order to be ‘genuine changes in constitutionally significant conditions.'”
Notably, however, Chuang issued a preliminary injunction, which will last through a trial on the merits of the case, whereas Watson only issued a temporary restraining order of the executive order, which is typically more limited in time. Watson said he intends to set an expedited hearing to determine whether it should be extended.
Immigration advocates applauded Watson’s ruling Wednesday evening immediately.
“The Constitution has once again put the brakes on President Trump’s disgraceful and discriminatory ban. We are pleased but not surprised by this latest development and will continue working to ensure the Muslim ban never takes effect,” said ACLU attorney Omar Jadwat, who argued for the case for the challengers in Maryland federal court earlier on Wednesday.
The Justice Department has yet to formally indicate its next legal steps.
A federal judge in Washington state is also in the process of evaluating challenges to the new travel ban, but may defer ruling in light of the nationwide ruling in Hawaii.
CLARIFICATION: This story has been updated to reflect Chuang’s ruling was published Thursday morning.
