Jeffrey Wall. (Photo: Diego M. Radzinschi/ALM) Jeffrey Wall. (Photo: Diego M. Radzinschi/ALM)

 

U.S. District Judge Theodore Chuang of the District of Maryland held a hearing Wednesday on a request from refugee groups to issue a temporary restraining order or preliminary injunction against President Donald Trump’s March 6 executive order restricting immigration from six Muslim-majority countries.

The International Refugee Assistance Project (IRAP) and HIAS Inc., along with several individual plaintiffs, are represented by lawyers from the American Civil Liberties Union and National Immigration Law Center. They argue that the order causes them and their clients immediate harm and violates the Constitution.

Chuang declined to rule from the bench in the morning following oral arguments, but said he hopes to make a decision sometime Wednesday. As he prepares to issue a ruling, the judge will likely consider what, if any, of Trump’s public statements he should consider, issues of standing and how wide the scope of any injunction should be.

1. Trump’s prior comments. Chuang’s first question was whether there is a limit on what the court can consider when deciding if the intent of the executive order was to discriminate against Muslims. Plaintiffs in this suit and elsewhere argue that some of Trump’s claims along the campaign trail, and public statements and comments from aides since the election, illustrate a clear intent to do so. Chuang asked where the “taint” of those comments cease to be a factor when the government is considering national security issues. Representing the plaintiffs, Omar Jadwat of the ACLU said that if a reasonable person would think those comments are relevant, then the court shouldn’t be “blinded” to them.

Acting Solicitor General Jeffrey Wall, who argued for the government, also addressed the issue. He said there’s a difference between Candidate Trump and President Trump — the president has cabinet members, officials and other resources to use when making such decisions. The court, he argued, should give more weight to comments made after the election.

2. Standing. Chuang asked the plaintiffs lawyers for the best or easiest example of standing to bring their claims. ACLU lawyer Justin Cox replied that the individual plaintiffs, who are Muslim and feel stigmatized by the order or who have family members in one of the restricted countries, would certainly experience immediate harm from implementation of the order.

Wall countered that the plaintiffs don’t have standing to bring religious discrimination claims over individual visa determinations. Chuang asked Wall about HIAS and IRAP, who claim that the impact of the order will cause them financial harm by, for example, spending more funds getting refugees to safety. Wall said the monetary harm is speculative, and also does not constitute the immediate, irreparable injury required for a temporary restraining order.

3. Scope. The judge asked both the plaintiffs and defendants about the scope and type of action he should take, if any. He asked both sides whether to implement a temporary restraining order or preliminary injunction. Wall — who noted that the government doesn’t think any emergency action is necessary — said it would be best to issue a temporary restraining order, and then come together later to discuss a preliminary injunction, if needed. Asked about the scope of the action, he said it should not be nationwide but instead limit the order to the individual plaintiffs and those with very close ties to organizations. The ACLU’s Cox said the plaintiffs would defer to the court’s judgment.