More than three months after President Trump initially signed his travel ban, federal government lawyers will head to appeals courts on opposite ends of the country this month in hopes of getting it reinstated.
On Monday, Justice Department attorneys will argue for the ban in the U.S. 4th Circuit Court of Appeals. They want the Richmond, Va., court to reverse a Maryland federal judge’s order that blocked Trump’s 90-day suspension of travel to the U.S. by nationals of Iran, Syria, Sudan, Libya, Somalia and Yemen.
A week later on May 15, government lawyers will present arguments in Seattle in the U.S. 9th Circuit Court of Appeals. The issue at hand is a Hawaii federal judge’s decision blocking the travel ban. The Hawaii case stopped the country-specific ban and froze Trump’s 120-day pause on refugee admissions.
Whoever loses will probably appeal to the U.S. Supreme Court.
Here’s what you need to know before that happens.
What’s behind the lawsuits
The state of Hawaii and Ismail Elshikh, the imam of the Muslim Assn. of Hawaii, won a national block of Trump’s order on March 15, the day before it was supposed to take effect. Hawaii said the ban would hurt tourism and the state’s university, which recruits from the six countries and has faculty members who hail from them.
Elshikh, a U.S. citizen, said in the suit that his mother-in-law had applied for a visa to travel to Hawaii to see the family before Trump became president. Elshikh said he fears that, under the travel ban, his mother-in-law couldn’t see him. His lawsuit said the ban stigmatized Muslims and created a perception that their religion was “disfavored.”
The Maryland case was brought by immigrants from Syria, Somalia and Iran whose families are in the middle of the visa approval process. It was also filed on behalf of groups that work with refugees.
In that case, lawyers from the American Civil Liberties Union and the National Immigration Law Center said the ban would prevent family reunification and discriminate on the basis of religion.
Lower court judges have been scathing
As proof, Watson’s cited Trump’s campaign promise to suspend Muslim immigration and his defense of his travel order as president. He pointed to an interview Trump gave to the Christian Broadcast Network in January after the first travel ban saying he would give preference to Christian refugees.
“The illogic of the government’s contention is palpable,” Watson wrote in his opinion, rebutting government arguments that the travel ban didn’t target Muslims. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
The opinion came out on March 15, the day before the revised travel ban was set to go into effect.
Reacting to Watson while at a Nashville campaign rally, Trump said he preferred the original travel ban. He said the modified one was simply a “watered-down” version of the the first.
In his 43-page ruling, which landed March 16, U.S. District Judge Theodore D. Chuang of Maryland said there were “strong indications that the national security purpose is not the primary purpose for the travel ban.” He said it was likely that Trump’s ban violated the Constitution by discriminating against Muslims.
The judges also quoted Trump advisor Rudy Giuliani and White House senior policy advisor Stephen Miller. Miller said in an interview that the second travel ban would “fundamentally” have the same outcome as the first one. In an earlier interview, Giuliani said the travel order was a legal way of keeping Trump’s promise of a ban on Muslim travel to the U.S.
But Trump’s defense has stayed the same
The federal government says that Trump has wide authority over matters of national security and that his order was intended to prevent potential terrorists from getting to the U.S.
The order cited two instances where people from the targeted countries were tied to terrorism in the U.S.
In January 2013, two Iraqis who came to the U.S. as refugees in 2009 were sentenced to more than 40 years in prison for supporting terrorism and attempting to send weapons and cash to Al Qaeda in Iraq. The new order, however, excluded Iraq from the ban.
The revised order also mentioned the case of a native of Somalia who was brought to the U.S. as a refugee and later became a citizen. He was sentenced in 2014 to 30 years in prison for plotting a truck bomb attack at a 2010 Christmas tree-lighting ceremony in Portland, Ore.
“It would be far less disruptive to uniformity — and more respectful of the Constitution’s allocation of authority over immigration to the political branches — to leave the order’s nationwide policy in place, with individualized exceptions for any particular persons who plaintiffs demonstrate suffer cognizable and irreparable injury,” government lawyers wrote in a brief to the 4th Circuit in April.
Government lawyers have also argued that Trump’s statements and those of his associates on suspending Muslim immigration shouldn’t be used to judge the travel ban. Unlike the first ban, Trump’s revised order does not refer to a person’s status as a “religious minority” or mention any religion by name.
Meanwhile, third parties have piled on
Hundreds of groups and individuals have filed dozens of briefs in support of or against the travel ban in both appeals courts. They include states and cities, tech companies, former national security officials, universities and civil rights groups. In addition, at least 165 members of Congress have urged courts to keep blocking the ban. More groups have filed briefs against Trump’s order than for it. Here’s a sampling of the filings.
- Maryland, California, Connecticut, Delaware, Illinois, Iowa, Maine, Massachusetts, New Mexico, New York, North Carolina, Rhode Island, Oregon, Vermont, Virginia, Washington, District of Columbia
- Los Angeles, New York, Philadelphia, Minneapolis, Pittsburgh, St. Louis, San Francisco and Seattle
- Microsoft, Facebook, Google, Uber, Twitter, Lyft, Yahoo and Airbnb
- Madeleine Albright, Leon E. Panetta and James R. Clapper
- Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, North Dakota, South Dakota, Tennessee, Texas, West Virginia
- Gun Owners Foundation, U.S. Border Control Foundation, English First Foundation, Citizens United Foundation, Conservative Legal Defense and Education Fund, Southeastern Legal Foundation, Alliance Defending Freedom and the American Center for Law and Justice
It’s now up to the lawyers to make their cases
Career attorneys from the Department of Justice will face off against civil rights attorneys fighting the travel ban. Many government attorneys are working on both appeals. The full list of attorneys for the cases is longer than what’s below. Only some of the lawyers listed here will appear in court.
- Jeffrey B. Wall, acting solicitor general
- Chad A. Readler, acting solicitor general
- Rod J. Rosenstein, U.S. attorney
- August E. Flentje, special counsel to the assistant attorney general
- Elliot Enoki, acting U.S. attorney
- 9th Circuit: Douglas Chin, Hawaii attorney general; Neal Katyal, a former acting solicitor general under President Obama
- 4th Circuit: Justin Cox, National Immigration Law Center; Omar Jadwat, American Civil Liberties Union
But the decision rests with the appeals court judges and, most likely, the Supreme Court afterward
In an unusual move, nearly all appeals court judges — instead of the usual three-judge panel — will hear the case in the 4th Circuit on Monday. The full court comprises 15 judges, the majority of whom were appointed by Democrats.
But some judges won’t participate because they are semi-retired or have a conflict of interest. For example, the most prominent Republican appointee to the court, Judge J. Harvie Wilkinson III, will probably recuse himself because his son-in-law, acting U.S. Solicitor Gen. Jeffrey B. Wall, is representing Trump.
A three-judge panel of the 9th Circuit will hear arguments on May 15. The court will announce the names of the judges a week before the hearing. Judges appointed by Democratic presidents outnumber Republican appointees on the 9th Circuit by about 2 to 1. But panels are drawn randomly. As such, it’s possible — but unlikely — for the travel ban case to be heard a completely Republican-appointed slate of judges.
Last month, the court rejected Hawaii’s request for it to skip a three-judge panel and convene an 11-judge “en banc” panel to consider arguments over the travel ban. It did not give details about its reasoning.