A federal judge who’d ruled President Trump’s previous travel ban illegal seemed more sympathetic to the latest version in a hearing Monday, casting doubt on whether the president’s opponents can continue to use his campaign rhetoric about Muslims to besmirch everything he does at this point.
Judge Theodore Chuang, an Obama appointee to the bench sitting in Maryland, begged anti-Trump lawyers to tell him how long the stigma from then-candidate Trump’s “Muslim ban” proposal should last, and was disappointed when they were unable to set a time limit.
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“They haven’t given me a line,” the judge said.
He didn’t give a schedule for when he plans to rule, but Mr. Trump’s revised policy is slated to go into effect Wednesday, boosting to eight the number of countries subject to “extreme vetting” travel restrictions.
Mr. Trump has repeatedly revised his policy both on the campaign trail and again as president, but has struggled to get out from under the accusations that anti-Muslim “animus” has poisoned all of the efforts, making them unconstitutional attacks on a religion.
Judge Chuang was one of a series of federal judges who blocked earlier versions. On Monday he drew distinctions between the first two iterations issued in January and March executive orders and the latest version, issued in a presidential proclamation last month, which came after what officials said was an extensive global review by the State and Homeland Security departments.
“We have a cabinet agency doing a review, there’s no suggestion there was religious animus in the agencies conducting the review,” Judge Chuang told lawyers for the American Civil Liberties Union and the International Refugee Assistance Project, two of the groups that are challenging the updated policy.
Omar Jadwat, the ACLU lawyer who argued the case Monday, said the latest version is even worse than the previous ones because it’s a permanent ban, replacing the 90-day halt Mr. Trump had originally called for.
“The result is just as the president promised — a bigger, tougher version of the same ban,” Mr. Jadwat said.
He also said there’s little evidence Mr. Trump has dropped campaign-season anti-Islamic statements. In fact, Mr. Jadwat said, Mr. Trump has continued that rhetoric by continuing to use a campaign trail applause line proposing that terrorists be executed with bullets dipped in pig’s blood.
Mr. Trump has repeatedly cited a story of questionable accuracy claiming that Gen. John Pershing had executed Muslim rebels in the Philippines with bullets dipped in pig’s blood. The insurgents believed exposure to pigs was religiously unclean.
“That is an extreme statement of hostility,” Mr. Jadwat said Monday.
The anti-Trump groups have asked the judge to issue a nationwide injunction halting the travel ban.
The latest version of the policy restricts entry from most travels who present passports from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Of those, Chad, North Korea and Venezuela are new additions to the list. Sudan, meanwhile, has been dropped from the list.
The Justice Department, defending the latest policy, said there’s never been any accusations that the Homeland Security and State Department officials who conducted the worldwide review are motivated by religious animus.
But Hashim Mooppan, the government lawyer, refused to say whether Mr. Trump’s final eight-country proclamation reflected the conclusions of the two departments, saying to reveal that would violate presidential privilege.
Judge Chuang seemed disturbed by that, repeatedly pressing the government to say whether it had an obligation to tell the court if there was a conflict between the recommendations and Mr. Trump’s final proclamation.
Mr. Mooppan admitted he’d seen the classified report, but said it wasn’t relevant to the case, saying all the judge should be looking at is Mr. Trump’s lengthy proclamation, which lays out details for why each of the eight countries appears on the restrictions list — and describes why Iraq, which normally would have been targeted, was not on the list.
Judge Chuang said he feared a repeat of the 1944 Supreme Court decision in Korematsu that upheld the interment of Japanese Americans during World War II, based on the president’s national security powers.
Nearly 70 years after the ruling, the Obama Justice Department said its predecessors suppressed evidence that showed there was no substantive fear Japanese-Americans were spying on the U.S.
The Maryland case is one of several ongoing challenges to the travel ban. The Supreme Court last week vacated a higher-court ruling in the case, saying the revised policy overtook the previous legal arguments.
Another case out of Hawaii, which also challenged the refugee restrictions in Mr. Trump’s executive order, remains live before the justices, though that too is likely to see action soon.
The 120-day pause the executive order placed on refugee admissions is set to expire by the end of this month.