President Donald Trump has now revised his Muslim ban twice, both times in efforts to rescue the ban from court decisions halting at least some of its provisions. On Tuesday, however, a federal judge held that Trump’s latest efforts are not good enough.
According to Judge Derrick Watson’s opinion in Hawaii v. Trump, the latest round of changes to Trump’s ban are not significant enough to rescue it from the same legal attacks that placed the previous version of the ban in legal jeopardy. Watson handed down a temporary order on halting the ban.
This round of litigation concerns the provisions of the ban restricting citizens of certain nations from entering the United States. Though the Supreme Court has not fully considered any version of these provisions on the merits, it handed down a temporary order in June holding that a previous version of the ban could not be enforced against close relatives of people in the United States, or other “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
The version of the ban considered by the Supreme Court prohibited nationals of six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen — from entering the United States. The latest version removes Sudan from this list, adds Chad and North Korea (though, in some cases, some nationals of some of the banned nations are allowed in the United States), and bans certain Venezuelan government officials and their families from entering the United States.
Two of the nations impacted by the latest version of the ban — North Korea and Venezuela — are not majority Muslim nations, perhaps in an effort to deflect allegations that Trump issued the ban specifically to target Muslims. But the addition of these two nations serves little more than a cosmetic purpose. As mentioned above, only a small number of Venezuelan officials and their families are impacted by the new ban, and virtually no North Koreans travel to the United States.
The thrust of Judge Watson’s opinion is that the latest version of the policy, Muslim Ban 3.0, does not correct significant problems that led courts to block much of Muslim Ban 2.0. To reach this conclusion, he relies heavily on a previous opinion by the United States Court of Appeals for the Ninth Circuit, which is binding upon Watson.
That opinion held, among other things, that federal immigration law “requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States” before they can be banned, and also “requires that the President’s findings support the conclusion that entry of all nationals from the [list of] designated countries…would be harmful to the national interest” in a case such as this one.
Trump has not met that burden. The new order, Watson explains, “‘does not tie these nationals in any way to terrorist organizations within the six designated countries,’ find them ‘responsible for insecure country conditions,’ or provide ‘any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.’”
Additionally, the new order “contains internal incoherencies that markedly undermine its stated ‘national security’ rationale.” Trump, for example, “finds that Iraq fails the ‘baseline’ security assessment but then omits Iraq from the ban for policy reasons.” Meanwhile, it restricts travel from Somalia despite the fact that Somalia passes a test that other nations which are not subject to a sweeping ban fail.
So Watson’s order is good news for opponents of the ban, but it remains to be seen whether it will stand. For one thing, as ThinkProgress previously explained, the Ninth Circuit decision that Watson relies upon includes some dubious legal analysis that may not stand up in the Supreme Court.
Watson, moreover, does not reach a constitutional question at the heart of the case — whether the ban was enacted for the very purpose of targeting Muslims — so it remains to be seen whether courts will view Trump’s nominal inclusion of two non-Muslim majority states in the ban as significant.