The travel ban legal battle is ready to resume in Maryland and in Virginia. The revised travel ban is approaching the first appeal in Virginia and Republican Attorney Generals move to support it. The 4th Circuit Court of Appeals will decide on a stay of the restraining order in the first week of April. The will decide whether to uphold the temporary restraining order issued by Federal judge Theodore Chuang, or to suspend it, therefore resuming the effectiveness of the ban, at least as far as the Maryland case is concerned. In the meantime, a new hearing is being held today by judge Theodore Chuang to possibly even widen the scope of the restraining order.
In fact, the Maryland Federal judge Theodore Chuang is considering extending his original ruling to also double the number of refugees to be admitted. In this way, the Maryland ruling would be similar to the one already issued in Hawaii. Judge Chuang, for unknown reasons, chose not to rule on this specific request from the plaintiffs as part of his first March 15 decision.
Some legal scholars and political commentators have questioned Chuang’s impartiality, in part because he served as deputy general counsel of the Department of Homeland Security in the Obama administration.
The revised travel ban caps at 50,000 the total of refugees for the fiscal year 2017. As of March 23, 38,453 refugees have been resettled in the country. Therefore the current budget allows only to resettle an additional 10,448 refugees.
In the Maryland case, the defendants are two refugee resettlement organizations which claim they would be damaged by a reduction of by the flow of refugees. If the travel ban stays suspended, by the end of the current fiscal year, 97,000 refugees would enter the US, at the current rate.
The Appeal Coming Soon
The actual appeal hearing at the 4th Circuit Court of Appeals is scheduled for May 8. By then all aspects of the case will be addressed and a final decision reached. The Court of Appeal has asked the Department of Justice and the plaintiff to specify, by March 30, if they want to go directly to a full panel of 15 active judges. Otherwise, the matter will be examined initially by a limited panel of 3 judges and could then be reviewed by a full panel.
The 4th Circuit Court of Appeal might lift the restraining order immediately and later decide upon the case as a whole in May. To support the stay of Chuang’s decision, 13 States have filed papers in support of the travel ban. Texas Attorney General Ken Paxton filed a court brief along with 11 other state attorneys general and the governor of Mississippi.
These Republican states claim that they have significant interests in protecting the safety of their residents and therefore the ban should be reinstated.
Steering Clear of the 9th Circuit
The original travel ban was suspended by James Robart, a Federal judge of the State of Washington. His decision was later upheld by the 9th Circuit Court of Appeal.
The Trump Administration issued the revised travel ban to address the concerns in the 9th Circuit’s ruling.
Yet the revised version was challenged in the states of Hawaii and Maryland and was equally blocked.
But it was not challenged by James Robart in Washington and was actually defended by some of the 9th Circuit Judges which had not participated in the original ruling against the first ban.
Meanwhile, the Department of Justice has not, to this day, appealed the decision in Hawaii and is not even continuing the litigation with the 9th Circuit against the original appellate decision.
Virginia Is a Friendlier Playing Field
They have preferred to tackle the Maryland ruling first and alone, playing on a more friendly arena like Virginia. Here a Federal judge has already issued a ruling in favor of the travel ban.
Virginia U.S. District Judge Anthony J. Trenga ruled that the travel ban does not violate the Establishment Clause. He cited the Supreme Court’s 1972 decision in Kleindienst v. Mandel which states that executive actions, taken in the interest of national security and immigration under congressionally delegated authority, need only be “facially legitimate and bona fide.”
This ruling is in direct opposition to the one in Hawaii where the judge went beyond the actual content of the order and ruled basing on the “intent” of the President.
The first travel ban was implemented in a haphazard way, based on poor counseling from the Department of Justice. With the arrival of the new AG, Jeff Sessions, the actions, and tactics of the Trump Administration have become more refined and targeted. They are choosing the best possible scenario for their appeals and laying the groundwork for a possible final confrontation before the Supreme Court.