ACLU attorney who presented the first challenge to the executive order on immigration. His argument resulted in a nationwide injunction.
Democratic congressmember of Illinois, member of the Judiciary Committee and co-chair of the Immigration Task Force of the Congressional Hispanic Caucus.
On Wednesday, only hours before the Trump administration’s new travel ban was set to go into effect, a federal judge in Hawaii issued a nationwide halt to the executive order, which would have temporarily suspended refugees and people from six majority-Muslim nations from entering the United States. This morning, a federal judge in Maryland also blocked part of the travel ban, dealing a second legal blow to the Trump’s executive order. For more, we speak with Lee Gelernt, an ACLU attorney who presented the first challenge to the executive order on immigration. His argument resulted in a nationwide injunction.
NERMEEN SHAIKH: Just hours before the Trump administration’s new travel ban was set to go into effect, a federal judge in Hawaii issued a nationwide halt to the order. And then, this morning, a judge in Maryland also temporarily blocked the travel ban, which would have suspended entry to all refugees and blocked entry to visitors from six majority-Muslim nations: Iran, Syria, Sudan, Somalia, Yemen and Libya. This is now the second time President Trump’s executive orders banning refugees and travelers from majority-Muslim countries have been blocked by the courts. U.S. District Judge Derrick Watson in Hawaii said evidence exists to show, quote, "the executive order was issued with a purpose to disfavor a particular religion."
AMY GOODMAN: In his ruling, Judge Watson also said there was nothing secret about the motive of Trump’s executive order, citing comments Trump made, as well as those of White House aide Stephen Miller and former New York Mayor Rudolph Giuliani, who said Trump originally called it a Muslim ban. Speaking in Memphis Wednesday, Trump criticized the judge’s ruling.
PRESIDENT DONALD TRUMP: This ruling makes us look weak, which, by the way, we no longer are. Believe me. Just look at our borders. We’re going to fight this terrible ruling. We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court.
NERMEEN SHAIKH: That was Trump speaking in Nashville. Last week, Hawaii became the first state to sue Trump over the travel ban. On Wednesday, Hawaiian Governor David Ige praised the court ruling.
GOV. DAVID IGE: We felt compelled to assure that we will not tolerate discrimination on the basis of national origin or religion, because that truly goes against the very essence of what makes Hawaii a very special place. And so, certainly, we felt compelled to file the lawsuit and are very happy that the court agreed with our position.
AMY GOODMAN: Well, we’re joined right now by Lee Gelernt, the ACLU attorney who presented the first challenge to Trump’s initial travel ban last month. The ACLU brought the case against the revised ban in Maryland.
Lee Gelernt, welcome back to Democracy Now!
LEE GELERNT: Thanks so much for having me.
AMY GOODMAN: So, talk about these two stays of the ban, first Hawaii and now in Maryland.
LEE GELERNT: Yeah. I mean, we’re extremely pleased. But I think we’re not surprised, because there is so much evidence out there that the primary purpose of this was religious discrimination. And I think the judges rightly saw that, and they saw that a few tweaks here or there would not eliminate—you know, what they said is, this doesn’t eliminate religious discrimination, because, to a reasonable observer, it’s clear what the president was trying to do. And the courts have said, "Don’t psychoanalyze government officials." Well, there’s no need to psychoanalyze here. The president stated, "We want a Muslim ban." And that’s what happens when you say we want religious discrimination. The courts push back.
NERMEEN SHAIKH: But how common is it to look at statements made in the past? I mean, the judge said—we played part of his words—that these plainly worded statements betrayed the executive order’s stated secular purpose. So, is it unusual for courts to reference statements made in the past to infer in the present that the intent is the same?
LEE GELERNT: It’s not unusual. And the Supreme Court has made clear you need to look at full context, and you can’t just avoid judicial scrutiny by cleaning up an order. You can look at statements. What I think is unusual is that the president of the United States made these kind of discriminatory statements, that there was so much evidence and so much direct evidence. I mean, normally, most government officials will try and hide it a little.
AMY GOODMAN: Let’s go back to Donald Trump last night speaking in Nashville.
PRESIDENT DONALD TRUMP: A judge has just blocked our executive order on travel and refugees coming into our country from certain countries. The order he blocked was a watered-down version of the first order that was also blocked by another judge and should have never been blocked to start with. ... This is, in the opinion of many, an unprecedented judicial overreach. The law and the Constitution give the president the power to suspend immigration when he deems—or she. Or she. Fortunately, it will not be Hillary "she."
AMY GOODMAN: That was Donald Trump speaking last night in Nashville, Tennessee. Lee Gelernt, your response?
LEE GELERNT: Well, you know, what he said was this is a "watered-down version." I mean, he’s admitting, again, we’re trying to do the same thing. And so, I think, you know, that’s telling: He’s not backing off the fact that they are trying to have a Muslim ban. And I think the courts are recognizing that.
NERMEEN SHAIKH: Well, what is the difference between the first and the second travel ban?
LEE GELERNT: Right, so the second ban does a few things. It eliminates Iraq from the countries that are banned. It also takes out a preference for minority religions, which the courts said that’s so overtly discriminatory between religions. It takes out lawful permanent residents and some visa holders. So it cures certain problems. But, I mean, we’re pleased that the president retreated to that extent. I mean, that’s a victory unto itself. But what it doesn’t do is eliminate the religious discrimination. It doesn’t eliminate the primary purpose being to ban Muslims.
NERMEEN SHAIKH: But what about what Trump said, though, at the end of his statement, namely, that the president does have the authority to issue an executive order—
LEE GELERNT: Right.
NERMEEN SHAIKH: —to suspend immigration?
LEE GELERNT: And so, I want to be as clear as possible that the president has enormous authority in the area of immigration and does get deference, but what he cannot do is discriminate on the basis of religion. So, if there’s a genuine national security threat raised by particular individuals, of course they can investigate. What they can’t—they need to investigate particular threats to particular individuals. What they can’t do is base it on groups or religion, assume a particular religion is a threat.
AMY GOODMAN: In his ruling, U.S. District Court Judge Derrick Watson cited an appearance by White House senior policy adviser Stephen Miller on Fox News talking about the new revised ban.
STEPHEN MILLER: Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court, and those will be addressed. But in terms of protecting the country, those—those basic policies are still going to be in effect.
AMY GOODMAN: Your response, Lee?
LEE GELERNT: Well, right. So, he’s saying the basic policies are going to still be in effect, and the courts are rightly calling him on it. He’s saying, "We’re going to try and do the same thing, but we’re going to weave around to see if we can get around what the courts have thought was Muslim discrimination." But the courts called him on it.
AMY GOODMAN: So, what’s the difference between the Maryland and the Hawaii stays?
LEE GELERNT: Right, so that’s a good question. So, what the Maryland judge said is, "I don’t think there’s enough evidence in the record to ban the refugee—to block the refugee part," but the six-country ban, which is the critical part, he did block. The Hawaii went further and said, "I’m going to block even the refugee part." But I think the critical thing about Maryland that’s different than Hawaii is, it’s a longer injunction. It’s what’s called a preliminary injunction. It will last through trial. The Hawaii judge only issued a short injunction that will expire in a few weeks.
NERMEEN SHAIKH: Well, the Trump administration may still get its way here, right? Because an appeals court may decide that the Honolulu judge made a mistake in its assessment, or the Supreme Court could intervene. What do you see is the prospects?
LEE GELERNT: Right, but we’re not under any illusions that the litigation is over. I think that the government has made it clear that they intend to appeal. We are anticipating a long, hard legal battle, but we’re hopefully going to prevail at the end.
AMY GOODMAN: So, let’s talk about what happens when this is appealed, what—
LEE GELERNT: Right.
AMY GOODMAN: Hawaii is Ninth Circuit, that same Ninth Circuit that reviewed the first—
LEE GELERNT: Right.
AMY GOODMAN: —Washington state stay on the ban. This could go to the Supreme Court.
LEE GELERNT: Absolutely.
AMY GOODMAN: And this could go to a Supreme Court that has a confirmed Judge Gorsuch as the ninth member.
LEE GELERNT: Right. It will depend on the timing, but absolutely. You know, it’s hard to predict where it will end up, when it will end up in the Supreme Court, if it will, or what the court will do. We’re hopeful that we will prevail if it does go to the Supreme Court, but we’re a long way from there, because we will have appeals courts rulings, not just by the Ninth Circuit, but it’s—potentially have a Fourth Circuit ruling, as well, out of the Maryland case. That’s the circuit that covers Maryland.
AMY GOODMAN: We’re also joined by Congressman Luis Gutiérrez from Chicago. He’s in Washington, D.C., right now. I hope that you no longer have handcuffs on, but we’ll talk about that in a minute, Congressman Gutiérrez. ICE handcuffed you the other day for your—for staying in their office But we want to ask you about the travel ban, your thoughts on these two stays out of Hawaii and Maryland.
REP. LUIS GUTIÉRREZ: Well, it’s a victory for people. It’s a victory for democracy. I guess if you run a campaign and you, on repeated occasions, say you’re going to discriminate against a population of people, you’re going to have a Muslim ban, and then you initiate executive orders, people are going to remember. Apparently, judges read the papers, listen to the news and remember. And that’s all they really had to do yesterday, because even Stephen Miller reiterated, after the first lawsuit, these are just some small technical differences that we’re going to make. Then we have, of course, our all-star Giuliani, the former mayor of New York, who said, "Don’t worry. I advised him how to get a Muslim ban without it seeming like a Muslim ban or being able to pass on judicial muster." Look, they are human beings, too. They receive the news. They get the information. And apparently, the judges remember.
AMY GOODMAN: Well, we’re going to ask you to stay with us after break, Congressman Luis Gutiérrez. And, Lee Gelernt, thanks so much for being with us—
LEE GELERNT: Thanks so much for having me.
AMY GOODMAN: —of the—lawyer with the ACLU, who was the lawyer who brought the original lawsuit against the original ban in a Brooklyn court. This is Democracy Now!, democracynow.org, The War and Peace Report. Stay with us.