By Andrea Noble - The Washington Times - Sunday, March 26, 2017

When a federal judge in Hawaii blocked President Trump’s revised travel and refugee order from taking effect, he ruled that the president’s own comments about the policy proved “religious animus” was at the heart of the ban.

But in a victory for the administration, another federal judge has more recently found revisions to the original policy undercut claims that the purpose of the executive order was meant to discriminate against Muslims.

While the enforcement of the revised executive order remains blocked, the juxtaposition of the recent court rulings shows there could be hope yet for the administration’s policy, which has thus far been mostly losing what is expected to be long and drawn out legal fight.

“It’s certainly a moral and political victory,” said Curt Levey, a constitutional law attorney with FreedomWorks and the Committee for Justice.

The magnitude of the case, which raises constitutional questions about religious discrimination as well as the scope of the president’s authority on immigration and national security, coupled with the potential for split appellate court rulings almost guarantees a path toward the Supreme Court, Mr. Levey said. And having at least one ruling in the administration’s favor will be helpful as cases challenging the order move forward.

Two rulings, from federal judges in Hawaii and Maryland, currently prevent the Trump administration from enforcing portions of its executive order that temporarily ban travel to the U.S. by foreign nationals from six majority-Muslim countries and resettlement of any refugees here.

But Friday’s ruling out of the U.S. District Court for the Eastern District of Virginia is the first to outright uphold the legality of the revised executive order.

The Trump administration had gone back to the drawing board to rewrite its executive order on travel and refugees after unsuccessfully sparring with the federal courts over the first order. Taking into considerations the objections raised by the 9th U.S. Circuit Court of Appeals, the Trump administration reduced the number of countries from which the administration sought to suspend travel and exempted immigrants and visitors who already have ties to the U.S.

But U.S. District Judge Derrick Watson, of Hawaii, ruled against the new order, writing that comments made by Mr. Trump and administration officials provided “significant and unrebutted evidence of religious animus.”
On Friday, U.S. District Judge Anthony Trenga came to a different conclusion.

Ruling in a case brought by in Virginia by the Council on American-Islamic Relations, Judge Trenga said the significant changes made to the revised order made it “materially different in structure, text, and effect” from the first version.

“This Court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent,” Judge Trenga wrote in his 32-page order. “And while the President and his advisers have continued to make statements the court cannot conclude for the purposes of the motion that these statements, together with the president’s past statements, have effectively disqualified him from exercising his lawful presidential authority.”

CAIR had alleged a variety of harms to various clients as a result of the revised executive order, including an overall stigma against Muslims living in the U.S., and an inability for some plaintiffs to bring relatives living in Syria and Iran to the U.S. to visit family.

The judge concluded that the revisions “have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that” the second executive order is “a pretext or a sham” for religious discrimination.

Mr. Levey said the notion that one judge can put the Trump administration’s executive order on hold, regardless of how many may rule to the contrary, only underscores the importance of having an appeals court weigh in on the nationwide injunction.

“It’s silly and also invites plaintiffs to file a ton of cases hoping one judge somewhere will agree with them,” Mr. Levey said. “You can always find a lone district court judge.”

Justice Department attorneys will be back in court this week to defend the order in ongoing legal challenges. The broadest ruling, out of Hawaii, which prevents nationwide implementation of the travel limits, is temporary and set to expire Thursday if it is not extended.

A hearing that could do just that is set for Wednesday. Judge Watson, whose March 15 ruling prevented the revised executive order from going into effect as planned on March 16, will consider whether to convert his temporary restraining order into a preliminary injunction that could remain in place as the case is argued.

A narrower ruling by a Maryland-based federal judge, which only blocks the implementation of the travel restrictions and not the block of the refugee program, will be argued before the 4th U.S. Circuit Court in Richmond in May.