Wall Street Journal
By Brent Kendall
March 15, 2017
GREENBELT, Md.—A federal judge here asked tough questions Wednesday as he considered whether to temporarily block President Donald Trump’s new executive order on visas and refugees, a key test of the scaled-back version after the initial order was suspended by courts.
Refugee assistance groups and others, represented by the American Civil Liberties Union, asked U.S. District Judge Theodore D. Chuang to block immediate enforcement of the president’s ban on travel to the U.S. for people from six Muslim-majority countries.
The groups said immigrants and refugees would face immediate harm if the executive order is allowed to go into effect as scheduled at 12:01 a.m. Thursday. That deadline added a bit of drama to the Maryland hearing and the broader daylong legal skirmishing over the new order.
While the advocacy groups pressed their arguments that the travel restrictions amounted to unlawful discrimination against Muslims, Judge Chuang asked how he should view the new national security justifications Mr. Trump provided when issuing the new ban on March 6. The president said his approach was designed to address potential terrorist threats.
The controversial White House counselor says his father’s 2008 financial trauma helped crystallize his antiglobalist views and led to a political hardening; ‘I’m going to be totally wiped out.’
Republican senators, alarmed by a nonpartisan report showing millions would lose insurance under the GOP health-care plan, warned Tuesday that the bill wouldn’t become law without fundamental changes.
Declaring his contingent of federal agency heads “one of the greatest cabinets in history,” President Donald Trump signed an executive order that directs his team to find ways to make their departments more efficient and effective.
“Generally courts defer, at least to some degree,” to those type of national security determinations, Judge Chuang said.
The judge noted that the Trump administration had altered the travel ban in a number of ways since Mr. Trump’s original Jan. 27 effort was halted by courts, and “they have offered additional information” in support of the executive order.
ACLU lawyer Omar Jadwat said the president’s revised order, like the first one, wasn’t motivated by an actual imminent threat of terrorist attack. Adding new national security language to the order “doesn’t divorce it from its original purpose,” he said, which was to implement a ban on Muslim immigrants as Mr. Trump promised during the presidential campaign.
The Maryland hearing was one of several potentially important legal tests for the travel ban Wednesday. A hearing is scheduled in Hawaii later in the day on a different challenge to the ban brought by state officials there, and a judge in Seattle also is considering whether to allow the new ban to take effect.
In a sign of the high stakes, the Justice Department, which is defending the travel restrictions, sent its top lawyers to the Maryland court.
Jeffrey Wall, the administration’s new acting solicitor general, said the harms claimed by the challengers from the travel restrictions were speculative, and that wasn’t enough to give them a right to sue the president. “The plaintiffs have run into court too soon,” he said.
When the judge cited Mr. Trump’s previous campaign statements in support of a Muslim ban, Mr. Wall said circumstances were different now that he had taken the oath of office. He noted that the president’s new executive order makes no mention at all of religion, and that Mr. Trump issued the new policy after consulting with three cabinet-level officials “whose motives have not been impugned.”
What if Mr. Trump had made statements in support of a Muslim ban during a White House news conference, the judge asked. “I think it would be a harder case,” Mr. Wall responded.
Judge Chuang said he hoped to issue a decision Wednesday but didn’t promise to do so.
The judge won’t be making a full and final decision on whether the travel ban is legal. Instead, he is considering whether the challengers have a good chance of ultimate success in their lawsuit and whether they will be irreparably harmed if the travel ban is allowed to go into effect during the litigation on its underlying legality.
The judge asked several questions about how broadly or narrowly he should rule if he decides the challengers should win.
Mr. Wall said that if the government were to lose, the judge shouldn’t issue a restraining order or preliminary injunction that is nationwide in scope. At most, the challengers would be entitled to a ruling that bars implementation of the travel restrictions against their specific clients, he said.
The challengers, as expected, advocated for a broader ruling.
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