ALEXANDRIA, Va. – As the Trump administration grapples with the Ninth Circuit’s refusal to reinstate the President’s travel ban, a federal judge across the country dealt another significant blow to the executive order in Virginia late Monday, writing in her opinion: “Maximum power does not mean absolute power.”
US District Court Judge Leonie Brinkema in Virginia granted a modified version of the state’s request for a preliminary injunction to stop enforcement of the travel ban, finding the state had the ability to sue, “is likely to prevail on the merits” of at least one of its constitutional arguments and the Justice Department would not suffer any harm from imposing the injunction.
The judge declined to issue her injunction on nationwide basis “to avoid any claim that” it is “defective because of overbreadth.”
Brinkema’s order specifically prevents the Justice Department from now enforcing section 3(c) of the President’s executive order — barring foreign nationals from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the US for 90 days — against Virginia residents or those who work at, or attend, Virginia’s public universities.
And unlike the temporary restraining order preventing deportation of such individuals (which expired last week), this new preliminary injunction will last through a trial on the constitutionality of the executive order in this case (unless later modified by the judge).
At a court hearing last Friday, Justice Department attorney Erez Reuveni said that “all options are being considered” on how to proceed in the wake of the Ninth Circuit’s decision — a sentiment reiterated multiple times on Sunday by White House policy director Stephen Miller — but that didn’t stop the Virginia attorney general’s office from pressing forward with its motion for a preliminary injunction to prevent enforcement of the travel ban.
Brinkema pressed Reuveni at length at Friday’s hearing to explain what evidence the Trump administration had to justify such a sweeping ban of foreign nationals from seven Muslim-majority countries, remarking that the executive order has “all kinds of weaknesses” and “defects.”
“The defendants have responded with no evidence other than the (executive order),” Brinkema wrote in her decision.
At the hearing the judge also said that she was moved by a declaration signed by several former senior US officials, including former Secretaries of State John Kerry and Madeleine Albright, in support of a brief filed by the attorneys general of Washington state and Minnesota in the Ninth Circuit appeal.
“We view the (executive) order as one that ultimately undermines the national security of the United States, rather than making us safer,” officials wrote.
“It could do long-term damage to our national security and foreign policy interest, endangering US troops in the field and disrupting counterterrorism and national security partnerships.”
Brinkema said at last Friday’s hearing that the officials’ declaration was “clear as a bell.”
“This is coming from people with first-hand direct knowledge” of national security issues, Brinkema added — whereas the government had failed to offer even a “scintilla of evidence” that counters it.
Brinkema’s written decision on Monday further recounted the public comments made by then-Republican presidential candidate Trump, calling for a “complete shutdown of Muslims entering the United States,” and more recent statements from former New York Mayor Rudy Giuliani that Trump wanted to find a way to implement the ban “legally.”
“Defendants have not denied any of these statements or produced any evidence beyond the text of the (executive order) itself, to support their contention that the (executive order) was primarily motivated by national security concerns,” Brinkema explained.
“Defendants have argued that the court may not go beyond the text of the (executive order) in assessing its purpose, or look behind its proffered national security rationale, but the Supreme Court has rejected that position,” she added.
“The evidence in this record focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani established between those statements and the (executive order),” Brinkema wrote. “Based on that evidence, at this preliminary (stage) of the litigation, the Court finds that the Commonwealth has established a likelihood of success on the merits.”
“I saw this unlawful, unconstitutional, and un-American ban for exactly what it is and I’m glad the Court has, too,” Virginia attorney general Mark Herring said in a statement following Brinkema’s ruling.
The Justice Department declined to comment.