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Virginia Judge Tees Up Argument Over Travel Ban for Top Court

March 24, 2017, 6:36 PM

By Erik Larson and David Voreacos, Bloomberg News

A Virginia judge helped tee up an argument likely to be fought all the way to the U.S. Supreme Court over President Donald Trump’s efforts to restrict travel to the U.S. from six predominantly Muslim countries.

U.S. District Judge Anthony Trenga in Alexandria on Friday denied a request to block Trump’s March 6 executive order saying he’s not going to psychoanalyze the president for his motives in drafting the travel ban. That put Trenga at odds with other federal judges who have ruled the president’s past comments can be taken into account in determining whether he intended to discriminate against Muslims.

If the Supreme Court takes up Trump’s executive order, one question it’s likely to review is whether the directive is based on religious animus, said Tara Grove, a constitutional law professor at William & Mary Law School in Virginia.

“One of the key questions will be whether the court should look only at the text of the executive order or whether it should consider other evidence, including statements that President Trump and others have made,” Grove said.

The win in Virginia is important symbolically for Trump, said Danielle McLaughlin, a lawyer at Nixon Peabody.

“This does give some teeth to his argument, at least in the court of public opinion,” McLaughlin said. “Trump has a direct line to the American people and there’s no question he’ll utilize the ruling to tell regular folks that his ban isn’t discriminatory.”

Trump’s Words May Haunt Him as Travel Ban Appeal Promised

The Virginia case was brought by Linda Sarsour, a well-known Muslim activist from Brooklyn, New York, and national co-chair of the Women’s March on Washington that took place the day after Trump’s inauguration. The suit was the first that sought to use Trump’s recent public remarks against him in court, in addition to his comments about Muslims during the campaign.

Gadeir Abbas, an attorney for the plaintiffs, pointed to Trump’s remarks at a rally in Nashville, Tennessee, saying they showed the president’s real motive is a bias against Islam. That would violate the Constitution’s Establishment Clause, which prohibits any government preference for one religion over another.

He said “three times in 10 minutes, in front of thousands of people and with television cameras pointed in his face, that the new executive order is a watered-down version of the first,” which courts had said unfairly targeted Muslims, Abbas said.

Past Comments

A San Francisco appeals court, in reviewing Trump’s initial travel ban, said courts could consider the motivation behind the order. U.S. District Judge Derrick Watson in Honolulu accepted the invitation and in blocking the enforcement of the travel ban found that a reasonable person would conclude that the revised order was issued with “a purpose to disfavor a particular religion.”

Trenga in Virginia disagreed.

Changes made from the first executive order to the second were substantial enough that the president’s past remarks don’t carry as much weight, Trenga said.

Suggesting otherwise would require “a psychoanalysis of the drafter’s heart of hearts,” the judge said.

Trump replaced his first order by dropping Iraq from a list of seven countries whose citizens are barred from entering the U.S. for 90 days. The revised order halted admissions of refugees for 120 days, but it no longer banned Syrian refugees indefinitely and didn’t favor Christians. Permanent legal residents, also known as green card holders, and travelers with a valid visa were exempt under the new order.

The bitter fight over the travel bans has become an early test of whether the president will be able to deliver on his campaign promises. Other than an early win in Boston, the administration has lost in courts across the country as technology companies, universities, civil-rights advocates and states including Washington, Hawaii and Minnesota challenged the directive.

Legal Issues in the Trump Travel Ban Fight: QuickTake Scorecard

The losses forced Trump to revise his initial executive order, signed one week after he was sworn in, though the new version -- which he called simply a “watered down” one -- has also been blocked by courts.

A Maryland judge put the 90-day ban on visas for people from the six nations on hold, reinforcing a broader ruling out of Hawaii which additionally blocked a longer ban regarding refugees. The decisions stopped the second order from ever taking effect.

Trump slammed the rulings, saying that they “make us look weak” and that the travel restrictions are needed to protect Americans from “radical Islamic terrorists.” The Justice Department said Trump has broad legal authority to regulate immigration.

Government Appeal

The government is appealing the Maryland judge’s ruling.

“We disagree with the result reached by the court” in Virginia, said Lee Gelernt, an American Civil Liberties Union lawyer who wasn’t involved in the case. “The issue is now before the Fourth Circuit,” he said in reference to the appeals court in Richmond, Virginia.

“It does not surprise me that a judge would defer to the president in such matters,” said Stephen Wasby, a legal scholar at the State University of New York in Albany who isn’t involved in the case and is critical of the travel ban. “This is immigration and foreign affairs, an area in which judges are more deferential to the executive.”

The Fourth Circuit may combine the Virginia case with the Maryland case as part of the appeal process, he said.

The case is Sarsour v. Trump, 17-cv-00120, U.S. District Court, Eastern District of Virginia (Alexandria).

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