The Justice Department is moving forward with its defense of President Trump’s revised executive order on travel and refugees — taking steps to appeal court rulings that have blocked for a second time its nationwide enforcement.
In a two-pronged approach, government lawyers argued in one case out of Hawaii that a federal judge’s ruling there should be scaled back, while in a Maryland case they filed notice they intend to appeal a ruling that put a narrower portion of the executive order on hold. The legal strategy could aim to have an appeal heard by an appellate court that might be friendlier to their case, according to legal experts.
U.S. District Judge Theodore D. Chuang on Thursday issued a preliminary injunction that prevented the Trump administration from enforcing a portion of the administration’s order that banned for 90 days travel of foreign nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen to the United States.
A separate ruling in Hawaii by U.S. District Judge Derrick Watson earlier had blocked broader portions of the revised order, including the suspension of refugee resettlement programs, from going into effect Thursday.
In the Hawaii case, the Justice Department asked for clarification on Judge Watson’s order, arguing that his decision should not have enjoined the administration from rolling out a 120-day ban on all refugee resettlement or from lowering the cap on the number of refugees to be allowed into the United States this year from 110,000 people to 50,000 people.
“Plaintiffs’ briefing makes no mention of the cap, and this Court did not address it in its Order,” Justice attorneys wrote in a motion filed Saturday. “Moreover, that cap — which has global applicability — draws no distinction whatsoever on the basis of religion, and none of the courts to analyze either the old or the new Executive Orders has called that cap into question.”
If the government’s motion is granted, Judge Watson’s ruling could be scaled back to largely match the Maryland order. Meanwhile, the government is seeking an appeal of Judge Chuang’s ruling, which only enjoined the administration from blocking travel to the U.S. from nationals of the six majority-Muslims countries.
The Maryland case, brought by the International Refugee Assistance Project and the American Civil Liberties Union, will be appealed to the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia. The Hawaii case, brought by Hawaii Attorney General Douglas Chin, would head to the San Francisco-based 9th Circuit — where a panel of judges already ruled once against the original executive order.
The government’s appeal in Maryland could be part of a strategy to have the 4th Circuit play a prominent role.
“Whether [the government is] seeking further clarification because they are confused or they want to delay because they want the 4th Circuit to go first is an open question,” said attorney Ben Feuer, chairman of the California Appellate Law Group and an expert on the 9th Circuit. “The reason they might want a ruling from [the] 4th Circuit first is it’s perceived as a little bit more government-friendly and more conservative — at least historically.”
Justice Department officials have declined to comment on their legal strategy in addressing the cases.
“The Department of Justice strongly disagrees with the Maryland federal district court’s ruling, and looks forward to defending the president’s executive order seeking to protect our nation’s security,” Justice Department spokeswoman Nicole Navas said.
White House press secretary Sean Spicer said last week the administration will appeal the “flawed rulings” and that the Justice Department “is exploring all available options to vigorously defend this executive order.”
Even if Judge Watson decides against scaling back his own ruling, any response he provides to the Justice Department’s motion could be helpful to the government’s case.
“If it turns out the Hawaii court modifies its ruling in some way to exclude the refugee portion, or to explain why if found it to be implicated, then the Department of Justice can have something to appeal more clearly,” Mr. Feuer.