What’s Next for the Second Blocked Travel Ban?

On March 16, 2017, President Trump’s second travel ban executive order was scheduled to go into effect. Within hours of each other federal judges from Hawaii and Maryland issued decisions temporarily preventing portions of it from going into effect nationwide. Both decisions conclude that the executive order likely violates the Establishment Clause because it was intended to prevent people from for entering the United States on the basis of religion.

The State of Hawaii (and an American citizen of Egyptian descent with a Syrian mother-in-law lacking a visa) brought the case decided by the court in Hawaii.

The first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

The second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers.  

The Establishment Clause prevents the government from preferring one religion over another. To that end, laws must have a secular purpose.

The Hawaii judge reasoned that “a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequences of events leading to its issuance” would conclude the executive order was intended to disfavor Muslims despite its “stated, religiously neutral purpose.” More specifically, the court relied on numerous statements made by the President himself indicating he wanted a “Muslim ban.”

The Maryland judge’s analysis of the purpose of the travel ban is very similar to the Hawaii judge. The Maryland judge spends more time dismissing the notion that national security concerns were the real reason for the travel ban. “The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.”

President Trump has three options at this point. First, he can appeal both rulings to the Ninth and Fourth Circuits, respectively, like he did when a Washington State federal district court judge struck down the first travel ban. Three-judge panels will decide whether to affirm the lower court decisions. Second, he can go back to the drawing board again and issue a third travel ban. Finally, he can abandon altogether adopting a travel ban.

Initial comments by the President indicate he would like to take this travel ban (and the first one) all the way to the Supreme Court.     

On March 15, 2017, the full Ninth Circuit issued an opinion stating that it would not rehear the case regarding the first travel ban. Interesting, five Ninth Circuit judges dissented from this decision concluding that the first travel ban was “well within the powers of the presidency.”

If the President appeals the Hawaii ruling to the Ninth Circuit it is possible that the three-judge panel could include between zero to three of these dissenting judges.