Revised travel ban fight hinges on ‘Muslim ban’ question

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JUDY WOODRUFF: Another piece of the Trump agenda is getting attention today, and that is the president’s revised travel ban, which hit a roadblock in the federal courts.

Hari Sreenivasan has more.

HARI SREENIVASAN: The first ruling came yesterday in Hawaii, where a federal judge blocked parts of the executive order. It would have barred refugees, as well as nationals from six Muslim-majority countries, from entering the U.S.

And, overnight, a federal judge in Maryland issued his own block on the six-nation travel ban.

For more on all this, we turn to Devlin Barrett, who now covers the Justice Department and national security issues for The Washington Post.

So, Devlin, this was supposed to be the executive order designed to skirt around the legal challenges that the first one had. What were the problems?

DEVLIN BARRETT, The Washington Post: Well, the first one basically foundered on due process problems. Basically, the federal appeals court ruled that the order had not been written to give people a fair shake in the system essentially, particularly people who had visas or green cards.

So they changed that part of it, and they thought they fixed that problem. And, in a sense, they had. But what you saw in the last two rulings by federal judges is that now there’s a conflict over the real meat of the argument, which is, is this a Muslim ban or some partial version of a Muslim ban?

And what both these judges came down on as saying that, yes, it was essentially a violation of the First Amendment rule that you can’t disfavor a particular religion.

HARI SREENIVASAN: There aren’t any explicit terms directly in the new executive order that say Muslim or Islam. It seems that the Hawaii ruling seems to take a lot of candidate Trump’s words and the administration’s words and put them in there.

DEVLIN BARRETT: Well, right.

The Trump administration has really struggled in the legal process to separate itself from what the campaign has said, what the president has said, and even what some of his top advisers have said in defending the order.

And those statements have all been thrown back at them by the judges, and it’s really, frankly, remarkable the extent to which the travel ban, both versions of it, have been tossed at this point, or at least suspended at this point, based on the words of the president and his senior advisers.

HARI SREENIVASAN: Well, what is the Justice Department going to do?

DEVLIN BARRETT: Well, every indication is that they are going to appeal this.

Appeals — notices of appeals could come as soon as tonight in the two new rulings. There is a third case where everyone is just sort of waiting to see how the judge exactly handles that. But the expectation is there will be more appeals over this, more fights over it.

And, frankly, I think, this set of legal challenges will really be an argument about the basic issue of the term Muslim ban, and is that an accurate description of what this executive order does?

HARI SREENIVASAN: But what’s the likelihood then that this executive order gets challenged perhaps in other federal districts, other regions and has to be reconciled?

DEVLIN BARRETT: Well, it’s growing every day.

So, for example, last night, we saw two different parts of the country in which federal judges ruled on it. That means that, assuming the appeals go through, you will see appeals courts ruling in one part of the country and another part of the country, and oftentimes, just the way the court system works, those rulings don’t match up identically.

And when that happens, it increases the likelihood that something will go to the Supreme Court. That all depends, of course, on the notion that both sides still want to fight, but every indication right now is that whoever wins or loses at the appeals court round, the other side will want to keep fighting.

HARI SREENIVASAN: All right, Devlin Barrett of The Washington Post, thanks so much.

DEVLIN BARRETT: Sure.

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