The first wins on travel ban 2.0 are coming and the tide is turning in favor of the Trump Administration. Last week two Federal judges put a hold on the new version of the executive order that would place a pause on visas and refugees from 6 predominantly Myslim countries. They declared it unconstitutional and prevented it from going into effect on March 16, as per the original plan.
This is the second time the so-called travel ban is stopped with a temporary restraining order. The first time was by action of James Robart, Federal Judge in Washington state, who suspended the first version.
Now, this very judge is refusing to extend the first injunction to the second version, even though so requested by the State of Washington.
Robart states that the new travel ban:
“eliminates the indefinite suspension of refugees from Syria that was in EO1 and contains no preference for religious persecution claims of religious minorities.” He also noted that the order has a narrower scope. There is no limitation on asylum seekers. The government has also added an analysis of the conditions in each of the six countries. Yet Robart might still rule against Trump on the new version of the order, as requested by multiple states with Democratic leadership.
Unexpected Political Reaction in Favor of Travel Ban 2.0
In the meantime, Congress becomes uneasy about Federal judges potentially encroaching executive and legislative powers.
Even long-standing Republican and Democratic enemies of Trump and of his administration come to his support on the matter.
Harvard law professor and Democratic defender of civil liberties, Alan Dershowitz states that travel ban 2.0 should be upheld.
Muslim foreigners line up to give their consent.
Even several of the tech companies which heavily fought the first travel ban are now changing sides.
Fierce Fight Among Federal Judges
But more importantly, strong dissent brews inside the 9th Circuit Court of Appeal. This is the court which validated the original suspension issued by Judge Robart. And this would be the same Court of Appeal to judge upon the stay issued last week by the Federal judge in Hawaii.
Five judges (including the highly respected Chief Judge Alex Kozinski) filed a dissent to the original motion for rehearing. The blistering dissent shows that a significant number of 9th Circuit judges strongly disagrees with the decision of the original adjudicating panel.
They object that there is an “obligation to correct” the “manifest” errors of the panel. It calls those “fundamental” errors. The obvious flaws would be the lack of consideration to opposing case law, failure to address the statutory authority given to the President, and the sweeping dismissal of executive authority. The dissenting judges refer to the “clear misstatement of law” in the upholding of the district court. so bad it compelled “vacating” an opinion usually mooted by a dismissed case.
The 9th Circuit would have reviewed the first travel ban with a full panel of judges (en banc). Yet the government withdrew from that case when the President signed the second version of the order about two weeks ago. The five judges claim they would have supported the first travel ban if the original appeal had continued.
The fight is far from over and it is on the verge of creating a Constitutional crisis.