The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Late last night, a federal district court in Maryland issued a ruling blocking implementation of much of President Trump's third travel ban order because it discriminates against Muslims, in violation of the Establishment Clause of the First Amendment. Like previous iterations of the travel ban order, Travel Ban 3.0 bars all or most entry into the United States by citizens of several Muslim-majority nations, with the important difference that the latest ban is permanent rather than a temporary measure lasting for 90 days.
The Maryland court relies on President Trump's and his subordinates' and advisers' numerous statements equating the "territorial" ban adopted in all three iterations of the travel ban order with the "Muslim ban" Trump repeatedly advocated during the 2016 campaign. It concludes that Travel Ban 3.0 is largely a continuation and extension of the previous orders, and has the same underlying unconstitutional purpose of discriminating against Muslims. Judge Theodores Chuang's opinion further notes that the President's most recent statements about the travel ban issue "cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and…. convey the message that the third iteration of the ban-no longer temporary-will be the 'enhanced expression' of the earlier ones." Judge Chuang previously wrote an opinion blocking Travel Ban 2.0.
Last night's ruling also discusses the extremely weak and incoherent nature of the security rationale for Travel Ban 3.0. While Judge Chuang emphasizes that this does not by itself prove that the new travel ban is unconstitutional, it does undercut the government's efforts to prove that security considerations, not targeting Muslims, were the true purpose of the order. In cases where plaintiffs submit evidence indicating that a seemingly neutral government policy is actually motivated by an effort to engage in unconstitutional discrimination, the burden of proof shifts to the government, which must show that it would have adopted the same policy anyway, for a legitimate reason. Like its predecessors, Travel Ban 3.0 does not even come close to meeting that standard.
The ruling also concludes that the inclusion of North Korea and some Venezuelan government officials does not mitigate the anti-Muslim focus of the order, because it "has little practical significance," due to the fact that it bars almost no entrants who could otherwise have gotten in. The Venezuela provision only applies to a small number of government officials and their families, while only about 100 North Korean citizens entered the United States in 2016, many of them officials on diplomatic visas not covered by the ban.
Like yesterday's ruling against the travel ban by a federal district court in Hawaii, Judge Chuang also ruled that Travel Ban 3.0 violated the 1965 Immigration and Nationality Act, which forbids discrimination in the issuance of immigration visas on the basis of nationality. His opinion includes some strong rebuttals to various defenses of the legality of the order under the INA. For example, he criticizes the distinction the administration seeks to make between visas and the right to enter, by noting that "receiving an immigrant visa is meaningless without later receiving permission to enter" and that "the denial of entry to immigrants would generally have the effect of causing the denial of immigrant visas" as well.
On the other hand, Judge Chuang rejects two other statutory arguments advanced by the plaintiffs, which were endorsed by Judge Derrick Watson in the Hawaii ruling: that the president failed to make statutorily required findings, and that he imposed visa waiver requirements beyond those permitted by Congress.
Like the Hawaii decision, the Maryland ruling is limited to citizens of the six Muslim-majority nations covered by Travel Ban 3.0, and excludes North Korea and Venezuela. For reasons already noted, this distinction has little practical significance.
Both rulings also impose nationwide restrictions on implementation of the new travel ban order (a temporary restraining order in the Hawaii case; a temporary injunction in Maryland). Technically, both are just preliminary decisions temporarily blocking implementation of the travel ban until the court can reach a final decision on the merits. But both make clear that the plaintiffs are highly likely to prevail in any such final ruling.
One key difference between the two decisions is that the Maryland ruling only applies its injunction to persons with a "bona fide" connection to persons or entities in the United States. In this respect, it follows the Supreme Court's June 26 decision limiting the lower court injunctions against Travel Ban 2.0 to persons with such a connection. Like the Supreme Court injunction, the limitations on the Maryland one are based on a "balance of equities." For reasons I explained here, we should not assume that this limitation means that either the Supreme Court majority or Judge Chuang necessarily believe that Travel Ban 3.0 is legal as applied to persons who lack such a connection. "Likelihood of success on the merits" of the underlying claim is just one of several factors that plaintiffs are required to meet in order to qualify for a preliminary injunction. It could be that the Supreme Court majority believed that foreigners lacking a "bona fide" connection fail one or more of the other criteria.
Overall, Judge Chuang's opinion closely echoes the earlier Fourth Circuit appellate ruling against Travel Ban 2.0, which was also based on the religious discrimination issue. The latter decision was recently vacated by the Supreme Court, when it declared the case moot due to the expiration of the 90 day duration of the second travel ban order.
The discrimination claim against Travel Ban 3.0 raises a number of issues that came up in the legal challenges to its predecessor. In this post, I addressed the argument that Trump's travel ban order must be valid because a similar might be valid if issued by another president with different motivations. In other earlier posts, I explained why it is appropriate for courts to use Trump's campaign statements as evidence of unconstitutional motive, why it does not matter that the travel ban doesn't cover all of the world's Muslims, and why First Amendment restrictions on religious discrimination apply to immigration policy no less than other exercises of federal power.
Both the Hawaii ruling and the Maryland decision reinforce my view that Travel Ban 3.0 is vulnerable to most of the same legal challenges as its predecessors. At the very least, they make clear that the legal battle over Trump's travel bans is far from over. At the same time, it is important to remember that this is just the beginning of what will likely be prolonged litigation over Travel Ban 3.0. Both rulings against it are likely to be appealed, and the issue might well return to the Supreme Court. It is hard to make any definitive predictions about what the outcome will be when and if that happens.