President Donald Trump’s executive order stopping the entry of people from eight countries into the US, on the basis that their governments don’t share enough information to vet visa applicants, has been put on hold by a federal judge hours before it was supposed to go into effect — again.
But if you’re feeling déjà vu, resist it. This time might be different.
The judge in question, Derrick K. Watson of the District of Hawaii, did the same thing to the last iteration of Trump’s “travel ban” in March — in a case that ultimately led to the Supreme Court allowing a limited version of the ban to go into effect over the summer.
But that doesn’t mean the Trump administration is caught in an endless cycle of judicial smackdowns, in which they keep coming up with new versions of the travel ban that keep getting struck down in court. This ban is designed to be permanent, and the lawsuit will probably be the last one. And it’s more likely than ever that eventually, the administration will win.
Travel ban 3.0 was supposed to go into effect Wednesday and last indefinitely
The fate of Trump’s attempts to ban people from certain countries from the US has been one of the most convoluted plot lines in an extremely convoluted presidency. It all started with an idea Trump floated during the campaign, when in December 2015 he called for "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on,” and proceeded through three different executive orders (each one more narrowly tailored than the last).
At this point, whether the travel ban is still (or ever was) Trump’s promised “Muslim ban” is an open question — and one that’s up to the courts.
The president’s first executive order on the subject, issued in January, banned entry from seven Muslim-majority countries for 90 days and nearly all refugees for 120 days. That order was in effect for a week (often chaotically) before being put on hold by the courts, and was ultimately withdrawn by the administration.
In March the White House tried again, issuing a new ban on six of the original seven countries and expanding the refugee ban. That order was put on hold by Judge Watson the day before it was supposed to go into effect; the Ninth Circuit agreed with Watson that the order was likely unconstitutional, and the Fourth Circuit, in a separate (narrower) case, sided against the administration as well. Then on the last day of the Supreme Court session, the Court decided that the administration would be able to ban anyone covered by the order who lacked a “bona fide relationship” to the US — which, in practice, meant extended family members, tourists, and most refugees.
But the first and second versions of the travel ban were always designed to be temporary, while the federal government examined countries’ cooperation with US attempts to vet immigrants and visa holders.
Ultimately, on September 28, the Trump administration issued an executive order that dropped one country from the list (Sudan); added Chad, Venezuela, and North Korea; and specified who, exactly, should be denied visas from each country. Most importantly, it made the ban indefinite, starting Wednesday, October 17.
Except that indefinite isn’t starting yet.
Watson blocked the administration from enforcing the ban against any of the six majority-Muslim countries on the current list: Chad, Iran, Libya, Somalia, Syria, and Yemen. (The bans against Venezuela and North Korea are allowed to begin Wednesday as scheduled.) It’s possible that the federal government will try to rush the ruling to a higher court for an appeal, but it’s unlikely that they’ll get Watson’s ruling overturned or stopped by Wednesday morning.
Ultimately, though, the federal government probably does have a better chance of getting a victory on this version of the travel ban than it ever has before.
The government claims this ban is evidence-based. But will it show its work?
The fundamental question of this lawsuit is the same as the last ones: Is a ban on entries from certain Muslim-majority countries a discriminatory “Muslim ban,” or a legitimate national security act?
With each iteration of the travel ban, though, the Trump administration has worked harder to make its case for the latter. The current version not only includes non-Muslim countries and adds nuance to the categories of who’s banned, but is also predicated (in theory) on the findings of a Department of Homeland Security report.
It appears that the other federal judge taking up the ban right now — Judge Theodore Chuang in Maryland — is accordingly more skeptical of the arguments that this is just a “Muslim ban” in sheep’s clothing. (Chuang hasn’t ruled yet, and even if he sides with the government, Watson’s injunction will still apply until it’s directly overturned by a higher court.) Watson, however, asked the Trump administration to show its work by giving him the DHS report. They refused, and he resorted to using publicly available evidence — which, he concluded, didn’t justify the ban.
This is more scrutiny than executive branch policies usually come under from the judicial branch — especially where immigration is concerned. And it’s not clear that judges in the rest of the country, and particularly at the Supreme Court, are going to agree with Judge Watson that the Trump administration’s behavior is so inappropriate that it requires judges to evaluate whether a national security measure is justified by the facts — rather than to simply assume that the government acted in good faith.
It may take hours for a higher court to intercede and allow the ban to go into effect — or it could deliberate the question over a matter of months, as happened with the last travel ban. But as familiar as this defeat is for the Trump administration, they might have reason to be optimistic.