Legal Analysis: Trump’s 4th Circuit Appeal Should Have Been Plan A

The Trump Administration’s decision Friday to appeal a Maryland federal judge’s ruling, which effectively blocked President Donald J. Trump’s second Executive Order regarding immigration from six majority Muslim countries, to the United States Court of Appeals for the Fourth Circuit should have been part of the Administration’s initial game plan. Allowing immigration groups along with Washington state’s Attorney General to choose the most liberal venue possible, the United States Court of Appeals for the Ninth Circuit, by bring suit in the United States District Court for the Western District of Washington was a serious mistake.

If a third Executive Order is necessary to protect our country from criminal immigrants, Attorney General Jeff Sessions must order Department of Justice attorneys to bring a civil suit for declaratory relief, i.e., a declaration that the Executive Order is indeed constitutional. That suit must be brought in a venue that is favorable and likely to uphold the Executive, e.g., the United States Court of Appeals for the Fifth, Sixth, or Eleventh Circuits. This is the only litigation approach that stands a chance at success.

Read the Full Opinion of the Maryland federal judge:

A federal judge in Maryland is the second to issue an injunction preventing enforcement of President Trump’s revised travel ban.

U.S. District Judge Theodore Chuang on Thursday enjoined a revised provision that temporarily barred entry into the United States by immigrants from six majority-Muslim countries, report USA Today, the New York Times and the Washington Post.

Chuang’s order (PDF) follows a decision on Wednesday by a Honolulu federal judge who granted the state of Hawaii’s request for a restraining order blocking the revised travel ban.

Like the Hawaii judge, Chuang cited Trump’s negative statements about Muslim immigrants during the campaign. The likely purpose of Trump’s order, Chuang said, was “the effectuation of the proposed Muslim ban.”

The Maryland suit was filed by the American Civil Liberties Union and partner organizations, according to a press release.

Trump’s revised order had reinstated a 90-day ban on entry into the United States by immigrants from six majority-Muslim countries. A seventh country, Iraq, was removed from the banned list. Also, the revised order no longer prohibited entry by lawful permanent residents and current visa holders. Case-by-case waivers would also be allowed.



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