Jonathan Ernst / Reuters
GREENBELT, Md. &- With President Trump's second attempt at a refugee and travel executive order set to take effect after midnight, a federal judge in Maryland heard arguments on Wednesday morning on challengers' efforts to stop that from happening.
The executive order, which would temporarily suspend immigration from six countries as well as the US refugee program, will take effect at 12:01 a.m. ET Thursday. Challengers have gone to court in the week and a half since Trump signed the order on March 6 to try to block it.
US District Judge Theodore Chuang didn't rule from the bench after hearing arguments. He said he would try to issue an order later in the day, but wouldn't guarantee it. Chuang didn't signal which way he would rule, but did ask both sides to share their preferences for what he should do if he decided to block at least certain parts of the executive order.
The hearing before Chuang was the first of three scheduled for today on motions to temporarily halt the executive order from taking effect. Judges in Hawaii and Seattle will hear arguments later in the day. A fourth pending request for a court order halting enforcement of the new executive order is also pending in Seattle, brought by the state of Washington, but no hearing has been scheduled on that request.
The challengers in Maryland — individual visa holders who say they've experienced stigma from the president's actions and would be separated from family trying to travel to the US once the order takes effect, as well as nonprofits that work with refugees — want a nationwide injunction stopping the order from taking effect in its entirety.
A lawyer for the government disputed that any emergency action was needed, but said that if the judge did enter an order, it should be narrow and limited to the individual plaintiffs and certain clients of the nonprofits that sued.
Acting Solicitor General Jeffrey Wall argued that the new executive order "directly, serially" addressed concerns that the US Court of Appeals for the Ninth Circuit had expressed about the first version of the travel ban. He said the latest order made clear that lawful permanent residents and current visa-holders wouldn't be affected, removed a section focusing on Syrian refugees, and also took out a provision that would have prioritized religious minorities once the refugee program resumed. Critics charged that the religious minorities section was aimed at putting Muslim refugees at a disadvantage.
Chuang asked if the changes in the second order were more about addressing due process issues raised the first time around how the president's order would affect visa holders and applicants, as opposed to broader claims that the order violated the First Amendment's Establishment Clause by discriminating against Muslims.
The order draws no religious distinctions on its face, Wall replied, and any allegation that the order nevertheless disparately affected Muslims wasn't a legal argument that the court could consider.
Chuang asked both sides about what he should do with Trump's remarks during the presidential campaign advocating for a ban on Muslim immigration. Omar Jadwat, the director of the ACLU Immigrants’ Rights Project, said the court should consider whatever information a reasonable person would find relevant in exploring the government's purpose in adopting the travel restrictions. That included comments by Trump and his advisers about a Muslim ban, Jadwat said.
"The government never disputes that if you take all of the publicly available evidence together, it shows that purpose," Jadwat said. "Instead, it's asking the court to turn a blind eye to much of the evidence that is apparent to everybody."
Wall countered that Trump's statements as a candidate, as opposed to an elected official with the benefit of guidance from agency officials, were less relevant than what he'd said and done after taking office. The campaign comments were even less on point in looking at the second order, which was drafted in response to concerns raised by judges who looked at the first order, Wall said.
The Maryland case was first filed in early February in response to Trump's original executive order, after a federal judge in Seattle had already issued a nationwide injunction in early February.
Facing unfavorable rulings in several federal courts, Trump on March 6 signed a new executive order that would rescind the earlier order and replace it. The latest version would temporarily halt immigration from Iran, Libya, Somalia, Sudan, Syria, and Yemen (Iraq was removed from the list) for 90 days, but exempts current visa-holders and makes clear that exceptions would be considered.
The new order again would suspend the US refugee program for 120 days &- refugees already scheduled to come to the US by March 15 wouldn't be affected &- and cut the number of refugees who would be allowed in by more than half, from 110,000 to 50,000. In addition to removing the indefinite halt on Syrian refugees, the new order also removes the section prioritizing claims from religious minorities once the program resumed.
During arguments on Wednesday, Chuang asked another lawyer for the government, Arjun Garg, if the president could set the maximum number of refugees allowed in at zero and still be in compliance with the federal Refugee Act. Garg said that he could, if the president determined that allowing refugees in would be harmful to US interests.
Unlike the January order, the new one was announced 10 days before it would take effect, giving agencies and travelers more time to prepare. There was chaos at airports nationwide in the hours and days after Trump issued his January order, which had taken effect immediately when Trump signed it.
Find background here on the challenges to the new executive order.
Find legal documents here in the four pending requests for orders halting enforcement of the new executive order at BuzzFeed News.