Wall Street Journal
By Aruna Viswanatha
February 13, 2017
A federal judge in Virginia said late Monday that President Donald Trump’s executive order on immigration was likely unconstitutional and issued a preliminary injunction blocking part of the administration’s efforts to restrict entry to the United States.
With her ruling, U.S. District Judge Leonie Brinkema added another judicial roadblock to the president that is similar to court orders issued elsewhere, including a nationwide ruling issued Thursday by the Ninth U.S. Circuit Court of Appeals based in San Francisco.
Judge Brinkema said the government has provided “no evidence” to justify the order, which temporarily barred visitors and immigrants from seven majority-Muslim countries. The administration argues it was needed to stop terrorists from entering the country.
Critics say the executive order discriminates against Muslims and is an extension of Mr. Trump’s call on the campaign trail for a “total and complete shutdown of Muslims entering the United States.”
Judge Brinkema cited similar comments in her order. “The ‘Muslim ban’ was a centerpiece of the president’s campaign for months,” and is still available on his website, she wrote.
The government has argued the executive order is a valid exercise of the president’s authority to control immigration. But Judge Brinkema said that while Mr. Trump may have broad power over immigration, he still must operate within “the constraints of the Constitution, including the Bill of Rights.
“Maximum power does not mean absolute power,” she wrote.
The case was brought by the Virginia attorney general’s office.
Although both the Ninth Circuit ruling and Judge Brinkema’s decision take aim at the executive order, they differ in important ways.
The Ninth Circuit ruling was national in scope, and it covered additional parts of the order that suspended the U.S. refugee program for four months and blocked refugees from Syria indefinitely. In contrast, Judge Brinkema’s ruling covers only Virginia, and only the section of the order suspending entry from the seven specified countries.
The Ninth Circuit also focused on the question of whether the executive order violated due process, saying those challenging the order were likely to succeed in arguing that it did. Judge Brinkema, by contrast, tackled the issue of religious discrimination, and says the plaintiffs are likely to win on that.
Neither ruling, however, amounts to a direct decision on the underlying legality of the executive order. Instead, they suspend the measure while its fundamental merits can be considered by the courts, a process that could take months.
The result is a complicated legal landscape, though one that has clearly been unfriendly to Mr. Trump’s order so far. The White House has said it is reviewing its options, including issuing a new order, in light of its setbacks in court.
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