Challenge to third version of travel ban...

Federal judge hears challenge to third version of Trump's travel ban

By JOSH GERSTEIN

A federal judge in Maryland is deciding whether the third time's the charm for President Donald Trump’s travel ban.

Judges blunted the impact of the first two executive orders Trump issued earlier this year, measures that critics said were thinly disguised versions of the Muslim ban he promised on the campaign trail.

The latest iteration of the presidential proclamation dropped one majority Muslim country, Sudan, from an earlier list of countries that faced travel restrictions, added another largely Muslim nation, Chad, and included Venezuela and North Korea. What the administration describes as "tailored" travel limits in the new policy are set to take effect early Wednesday morning.

During a 90-minute session Monday in a Greenbelt, Maryland, courtroom, U.S. District Court Judge Theodore Chuang heard many of the same arguments that were leveled at the previous iterations of Trump’s policy: that it is premised on discrimination against Muslims and that it exceeds his authority under a complex set of immigration laws.

Although Chuang blocked a key part of Trump’s second travel ban order in March, the judge didn’t tip his hand clearly at Monday’s court session.

However, Chuang was notably persistent as he pressed Justice Department attorney Hashim Mooppan about the contents of a classified Department of Homeland Security report that government lawyers have repeatedly used to justify the third travel ban policy, which Trump issued last month.

Chuang asked Mooppan whether any facts in the classified report were at odds with the findings in the directive Trump issued last month.

“Are you representing to me now as an officer of the court that there’s nothing in there that inconsistent with this proclamation?” the judge asked.

Mooppan, the No. 2 attorney in DOJ’s civil division, wouldn’t answer directly.

“I think what’s in the proclamation supports [the policy] under the relevant legal standard,” the DOJ attorney said.

When the judge pressed again, Mooppan said he’d read the report but didn’t think the court needed to know precisely what was in the document, which addresses deficiencies in vetting of visitors to the U.S. and information sharing with foreign governments.

Chuang invoked Korematsu v. United States, the 1944 Supreme Court decision that upheld the internment of Japanese-Americans. Decades later, it emerged that some of the facts the government presented to the Supreme Court in that case were inaccurate.

“How is this different than Korematsu?” the judge asked, expressing concern that it might someday be revealed that Trump’s executive action wasn’t consistent with the DHS report.

Mooppan declined to elaborate on the DHS study.

“I do not think either we have the obligation nor should we ask about whether there were disagreements among presidential advisers,” the DOJ attorney said. “We stand behind the factual representations in the proclamation.”

The evasiveness seemed to irritate the judge, who later said in an aside to Mooppan that he’d “used up a lot of time” in the exchange over the classified report.

However, Chuang also asked searching questions of those challenging Trump’s travel ban 3.0. And the Obama appointee also sounded unsatisfied with the lack of a clear response from the plaintiffs pursuing three federal lawsuits in front of him.

The judge expressed concern that if the third iteration of Trump’s travel ban policy was deemed tainted by his campaign statements calling for a ban on Muslims traveling to the U.S., virtually any policy he might carry out involving a majority-Muslim country might be struck down.

“What is the limiting principle” that would prevent Trump from being sued “again and again?” Chuang asked American Civil Liberties Union attorney Omar Jadwat. “If this does not cure the issues that you raised the last time, what would the government have to do to demonstrate that they have?”

Jadwat declined to say but insisted that the policy the White House announced last month was clearly a direct descendant of the versions Trump attempted in January and March.

“I don’t know for sure,” the ACLU attorney said. “We’re not close to the line in this case because what we have here is the same policy — a seamless transition or sequence from [Executive order 1] to EO2 to EO3.”

Chuang also pressed another lawyer for the challengers, Gadeir Abbas of the Council on American-Islamic Relations, to explain how Trump could reformulate the policy without the taint of unconstitutional bias against Muslims.

“What could he do that wouldn’t run afoul of the establishment clause to at least address that problem? … What would you suggest he do other than what he’s done now?” the judge asked.

“I would advise the president to stop discriminating against Muslims,” Abbas replied.

“That’s not the question,” Chuang shot back.

“I don’t have an answer to that question, but the court doesn’t need to answer that question either,” the CAIR attorney countered.

One positive sign for the challengers was that Chuang noted that there had been no clear repudiation by the president of the comments he made during last year's campaign about banning Muslims. The judge also asked lawyers for those opposed to the ban for any evidence of Trump's continuing hostility to Islam.

Jadwat noted that in August, Trump sent a tweet about a discredited story that Gen. John Pershing, after the Spanish-American War, eradicated Muslim radicals in the Philippines by shooting some with bullets dipped in pig's blood.

"That is an extreme statement of hostility," the ACLU attorney said.

Attorney Mark Mosier, representing the group Iranian Alliances Across Borders, urged Chuang to reject the Justice Department's claims that the proclamation Trump issued last month should be judged without regard to anything Trump said earlier.

"The government takes the position that the world began on September 24," Mosier said. "The court's analysis should not begin on September 24."

Mosier noted that a recent ruling from the 4th U.S. Circuit Court of Appeals on election law restrictions in North Carolina took account of history involving suppression of African-American voting back to the aftermath of the Civil War.

"If the 4th Circuit can look at 150 years to decide an equal protection claim, surely the court can look to things that were said six or nine months ago," said Mosier, of the D.C. firm Covington & Burling.

At least six legal challenges have been filed to the newest version of the travel ban. Three of those suits are pending before Chuang. Others are pending in Honolulu, Seattle and Washington, D.C.

Legal maneuvering in the cases suggests that only the Maryland and Hawaii cases hold the possibility that the judges could rule on requests to block Trump’s new order before it takes effect Wednesday.

Chuang said Monday he will rule as soon as he can, but he did not promise to act before the third version of the travel ban kicks in.

A judge in Hawaii who issued the broadest block against the previous version of Trump’s policy has indicated he does not plan to hold a hearing, but he set a schedule that would allow a ruling on the legal papers before the effective date for the new directive.

At a news conference following Monday's hearing, activists decried Trump's travel ban policies. They also predicted that even if the president's latest directive was halted, he would again try to morph the policy and opponents would again go to court to block it.

"We've all cleared our schedules for the next four years," joked Becca Heller of the International Refugee Assistance Project.