A Maryland-based federal judge hearing arguments Wednesday in a lawsuit seeking to block President Trump’s revised travel ban questioned if he should take into account the president’s prior comments about a Muslim ban and whether any future travel restrictions made by the administration would face similar challenges because of the president’s statements.
U.S. District Judge Theodore D. Chuang declined to issue a ruling from the bench after hearing arguments from the American Civil Liberties Union, who believe the president’s travel ban will have a discriminatory and stigmatizing impact on Muslims.
At the close of the hearing, at a federal courthouse in Greenbelt, Maryland, Judge Chuang said he hopes to issue a written ruling by the end of the day.
The timing of any ruling is critical, as the executive order is set to take effect at 12:01 a.m. Thursday.
When asked whether Mr. Trump’s comments about seeking to implement a Muslim ban, made when he was running for office, should be taken into consideration in regard to the purpose of the order and whether it is discriminatory, Justice Department attorneys defending the order said there is a distinction between comments made about intent before Mr. Trump was sworn into office. The statements were made before he was sworn into office and before he discussed legal aspects of the executive order with Cabinet members, said Acting Solicitor General Jeffrey Wall.
The Maryland case is the first of at least three legal challenges to the revised executive order that are set to be heard Wednesday.
Under the order, citizens of six Muslim-majority countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — will be banned from obtaining visas to come to the United States for 90 days. Iraq was dropped from the original list of banned countries. The revised version still will halt all refugee resettlement for 120 days, though it removed the original order’s permanent ban on refugees from Syria and exemptions for religious minorities, namely Christians. It also lowers the number of refugees accepted by the U.S. this year from 110,000 people to 50,000 people.
While the ban is in effect, the Trump administration has pledged to develop an extreme-vetting program for all foreign visitors to the U.S., including a biometric entry/exit system to identify who is arriving to and departing from the country.
Those challenging the order say its provisions temporarily pausing refugee resettlement and blocking issuance of visas to prospective visitors from six majority-Muslims countries are too similar to Mr. Trump’s original order, which was put on hold by a federal judge amid concerns over constitutionality.
Government attorneys defending the order have argued that the narrower scope, coupled with provisions that lay out a waiver process for those who might be affected, addresses the concerns of challengers calling for the courts to again halt implementation.
Mr. Wall argued Wednesday that plaintiffs in the Maryland case could not prove they have standing to challenge the order, and that even if the judge were to agree that they could, they had not met the burden to show they “are facing some irreparable harm over the next few weeks” if the order is allowed to take effect.
Omar Jadwat, a senior staff attorney with the ACLU Immigrants’ Rights Project, argued that Mr. Trump’s statements as a candidate showed the true purpose of the executive order: to disfavor Muslims.
“A discriminatory process itself inflicts the injury,” Mr. Jadwat said, drawing the parallel that if a law blocked black families from moving into a particular neighborhood that they would not be told to wait until they were denied the right to move before they could challenge the law.
The discriminatory intent of Mr. Trump’s second order remains the same, despite the fact the administration was sent back to the drawing board to revise its original executive order after a federal court issued an injunction blocking its implementation, Mr. Jadwat said.
When asked whether the president would be able to ever restrict travel on national security grounds without facing the same argument from challenges, Mr. Jadwat said the government should offer specific evidence of a credible threat or attack associated with individuals inside a specific country to account for a travel restriction. He argued that the president’s plan to stop the flow of refugees has a disproportionate affect on Muslims because 50 percent of refugees coming into the United States.
Mr. Wall defended the Trump’s administration’s plan, saying the countries from which visa applications would be restricted were already identified by the Obama administration to be removed from the visa waiver program. He said the Trump administration took those groups “and said we are making different judgement on the amount of risk we are willing to tolerate.”
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