This time, the Supreme Court may find it difficult to avoid issuing a judgment on the president’s divisive policy
SEVEN months ago, Derrick Watson, a federal judge in Hawaii, blocked Donald Trump’s second ban on travel from Muslim countries before it could go into effect. The “illogic” of the administration’s desire to keep hundreds of millions of travellers out of the country was “palpable”, the ruling said. On October 17th, Judge Watson (pictured above) struck again, freezing Mr Trump’s latest travel ban, which would have taken effect at 12:01am on October 18th. The judge said the new order—which removes Sudan but adds Chad, North Korea and Venezuelan government officials to the forbidden list, and makes the ban permanent—“suffers from precisely the same maladies as its predecessor”. Hours later, another judge in Maryland blocked the ban for travellers with a “bona fide” connection to America.
Plaintiffs challenging Mr Trump’s proclamation had argued that the updated travel restrictions still discriminate against Muslims, violating both the law and the constitution (they did not object to the inclusion of North Korea and Venezuela, so the ruling did not disturb the bar on travel from those countries). In Maryland, Judge Theodore Chuang emphasised the ban’s First Amendment troubles—its targeting of Muslims—while Judge Watson focused on the statutory complaint, citing the Ninth Circuit Court of Appeals’ statement in June that solid evidence is necessary before presidents may issue sweeping edicts under the Immigration and Nationality Act. Mr Trump’s third order, Judge Watson wrote, “lacks sufficient findings that the entry of more than 150m nationals from six specified countries” would be “detrimental to the interests of the United States”. The travel ban violates not only the law but also “the founding principles of this nation”. It is, in Judge Chuang’s words, a “re-animation of the twice-enjoined Muslim ban”.
Judge Watson took issue with the Trump administration’s reasoning for including the new array of countries on the banned list. While the September 24th ban “certainly contains findings”, the logic falls well short of what the Ninth Circuit demands. First, there is no warrant for the conclusion “that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States”. The evidence “does not tie these nationals in any way to terrorist organizations within the six designated countries”; nor does it establish a tie “between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness”.
Second, Judge Watson noted that the administration badly misapplied its own list of objective criteria to decide which countries deserved to be on the restricted list. Many countries, including Iraq, fail to meet certain criteria but are not targeted by the ban. Meanwhile Sudan, which remains a state sponsor of terrorism, somehow got a reprieve from the ban after being included in the first two versions. The new ban is, in Judge Watson’s eyes, rather slapdash in its execution, even “absurd”, despite an ostensibly improved rubric for picking which countries to pick on.
In the spring, Jeff Sessions, the attorney-general, lambasted Judge Watson without naming him. “I really am amazed that a judge sitting on an island in the Pacific”, he said, “can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power”. On October 17th, the White House offered a similarly scathing response to Judge Watson’s ruling: the freeze “undercuts the president’s efforts to keep the American people safe and enforce minimum security standards for entry into the United States”. Mr Trump’s limits on travel “are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our nation”, the administration insisted. Higher courts will come through for the president’s order, and fast, “swiftly restor[ing] its vital protections”.
What happens next? Mr Trump’s lawyers are likely to appeal Judge Watson’s ruling to the Ninth Circuit Court of Appeals, a venue in which the administration has had little luck with previous incarnations of the travel ban and where Mr Trump is unlikely to prevail this time round. Meanwhile, the president will probably appeal Judge Chuang’s more limited injunction to the Fourth Circuit. No matter which party prevails on appeal, one or both cases will very likely go to the Supreme Court. The justices will greet the return of the travel ban with a jaundiced eye: last week, they finally disposed of a Fourth Circuit case involving Mr Trump’s March order after the entry ban expired, and in a matter of days they are expected to bin the Ninth Circuit case after the refugee from March ban expires on October 24th.
The Supreme Court managed to issue only interim orders regarding Mr Trump’s second ban and escaped without hearing arguments or issuing a full decision on its legality. That strategy of avoidance bore the fingerprints of Chief Justice John Roberts, who disdains his court’s perceived politicisation. But with the arrival of legal challenges to the third order—and no expiration dates to manipulate—the justices will have a hard time finding a way to avoid taking sides on one of the most divisive initiatives of the Trump presidency.