Immigration

Why Trump’s Third Travel Ban Got Struck Down Again

Judges still aren’t buying the idea that the ban isn’t discriminatory.
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Donald Trump at The White House.By Chris Kleponis/Pool/Getty Images.

On Friday, Donald Trump will have been president for nine months, officially marking 274 days of turmoil, bickering, and blithe mendacity, from which his central campaign promises have failed to materialize. Health-care reforms are flailing, tax reform is in danger, the border wall remains metaphorical and, yesterday, Trump’s beleaguered travel ban, now in its third iteration, was slapped down by Honolulu-based U.S. District Court Judge Derrick Watson. Releasing his ruling just hours before the ban was due to take effect, Watson argued that the revised policy—which tacked Chad, North Korea, and Venezuela onto its original targets of Iran, Libya, Syria, Yemen, and Somalia, while dropping Sudan—breached federal immigration law. (The restrictions placed on Venezuela and North Korea were not affected as part of the ruling.) The president’s executive order “suffers from precisely the same maladies as its predecessor,” Watson wrote. “It lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States.’”

Trump’s initial call for a “Muslim ban”—a term that continued to be displayed on his campaign Web site until recently—continues to haunt his efforts to translate his proposal into a credible law. “This is the third time Hawaii has gone to court to stop President Trump from issuing a travel ban that discriminates against people based on their nation of origin or religion,” State Attorney General Douglas Chin said in a statement. “Today is another victory for the rule of law. We stand ready to defend it.”

Watson’s ruling was echoed by a second federal judge hours later, as Theodore Chuang granted a preliminary injunction also blocking the ban.

Citing his campaign promise to bar terrorists and criminals from the country, Trump initially ordered an immediate suspension of travel from seven largely Muslim countries in January, sparking multiple protests and causing widespread confusion at airports across the country. After the ban was blocked by a federal judge in Seattle, the administration worked to whittle down its scope, all the while fielding complaints from the president that the alterations were “political correctness” run amok. Indeed, such was Trump’s brusque impassivity to the wording of the proposals that, asked by CBS News’s Lesley Stahl if there would be a Muslim ban in a post-election interview, he responded: “Call it whatever you want. We’ll call it territories, O.K.”

With the slap-down administered, the White House produced a different version in September, painstakingly arguing that its content was carefully considered, and that each of the affected countries was subject to a unique set of restrictions, tailored to its security capabilities. For example, every country was asked to meet specific standards for screening visa applications—restrictions apparently not met by eight countries. These aren’t, however, the same countries on the list. Somalia met the standards, but was included, anyway; Iraq did not, but the administration decided that including it on the banned list was “not warranted.” Other underscored changes included that legal permanent residents barred from the U.S. by the first ban would not be impacted by the third, and those who already possess visas could not have them revoked. The inclusion of North Korea and the predominantly Christian Venezuela in the ill-fated lineup were framed as credible proof that this was not, in fact, a Muslim travel ban.

Despite the White House’s endeavors, however, Judge Watson found few tangible differences between the second and third drafts of the ban. “The categorical restrictions on entire populations of men, women, and children, based upon nationality, are a poor fit for the issues regarding the sharing of ‘public-safety and terrorism-related information’ that the president identifies,” he wrote, noting that dangerous people of other nationalities could fall outside the remit of the ban. “This leads to absurd results,” he added, describing the executive order as “simultaneously overbroad and underinclusive.”

While agreeing that the administration’s national security goals are important, Watson said that the government had failed to prove that letting people affected by the ban into the country would directly harm the interests of the United States. He also included a swipe at Trump’s feud with the N.F.L. in his notes: “Professional athletes mirror the federal government in this respect,” he wrote. “[T]hey operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.”

Presumably inoculated to judicial interceptions by now, the White House managed to muster some anger, releasing a statement that attacked the “dangerously flawed” court order. “Today’s ruling is incorrect, fails to properly respect the separation of powers, and has the potential to cause serious negative consequences for our national security,” responded Justice Department spokesman Ian Prior. “The Department of Justice will appeal in an expeditious manner, continue to fight for the implementation of the President’s order, and exercise our duties to protect the American people.”

In Democrat camps, however, the satisfaction was palpable. “Pleased the judicial branch blocked the Muslim ban / travel ban. If you put lipstick on a bigoted executive order, it’s still bigoted,” tweeted Congressman Ted Lieu. “@realDonaldTrump just can’t take a hint,” wrote Elizabeth Warren. “His illegal Muslim ban is now 0 for 3 vs the Constitution.”

Following Watson’s ruling, the State Department confirmed Tuesday afternoon that officials would “resume regular processing of visas” for nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. Those challenging the ban—the state of Hawaii and the Muslim Association of Hawaii, along with two American citizens and a legal permanent resident who say the ban would keep them separated from family—had not asked for an injunction with regards to North Korea and Venezuela.

It’s unclear how long Watson’s ruling, which applies nationally, will be intact, but it looks likely that the issue will soon head back to the Supreme Court. It’s a sort of Pyrrhic victory for the defenders of those constitutional values that Trump has cast aside. Each injunction sends the White House back to the drawing board, scrambling around for an arbitrary set of add-ons (another religion, another national antagonist) that will bolster their spurious argument that the Travel Ban is not a Muslim Ban, with all the subtlety of an exaggerated wink. Nine months into office, then, the overarching question hanging over Trump’s political career remains similar to when he was campaigning: how much power can he legally exert? And, in turn, how robust are America’s institutions to resist?