GREENBELT, Md. (CN) – A federal judge picked apart the Supreme Court’s ruling on President Donald Trump’s so-called travel ban Tuesday to determine if the court can still review any part of the presidential proclamation.
According to Iranian Alliances Across Borders, the answer is a resounding yes. Attorneys for the group and its clients appeared in court Tuesday morning in the District of Maryland to encourage U.S. District Judge Theodore Chuang to advance their case to discovery.
The group had sued President Trump and various heads of federal agencies back in 2017, alleging the ban discriminates against Muslims. The case was consolidated with two similar cases brought by other refugee and immigrant organizations.
In light of the Supreme Court’s ruling in Hawaii v. Trump last June, the government has asked the court to dismiss the case, arguing the decision forecloses the remaining constitutional and Administrative Procedure Act claims in the Maryland case.
In a 5-4 ruling, the Supreme Court upheld the president’s proclamation holding that the Immigration and Nationality Act clearly authorizes the president to restrict individuals from five Muslim-majority countries and North Korea from entering the country if he determines their entry “would be detrimental to the interests of the United States.”
But Chuang said during a roughly 2.5 hour hearing Tuesday that he did not read the decision as barring all of the remaining claims in the Maryland case, in which the plaintiffs say the Supreme Court left unsettled the question of whether the proclamation violates the Establishment Clause of the Constitution.
Should Chuang advance the lawsuit, Iranian Alliances Across Borders wants the government to hand over the administrative record underlying the proclamation during discovery.
What that record would look like became a focal point of Tuesday’s arguments, with Chuang pressing the government repeatedly to identify what the administrative record would consist of.
Chuang asked Justice Department attorney Daniel Schwei if any guidance documents exist that instruct federal agencies on how to implement the proclamation.
“There are such documents, aren’t there,” Chuang asked.
Schwei demurred initially but later pointed to a State Department website with information about the proclamation’s waiver provision, which allows individuals from affected countries to apply for an exception to the proclamation’s bar to entry. But he said other internal documents would not be subject to court review.
“You’re saying there’s agency action here but it’s secret,” Chuang responded, noting that the secrecy bothered him and suggesting that it implies the creation of a rule with no record.
Schwei said absolutely no precedent would support forcing the president to produce any of the material provided to him that he considered in issuing the proclamation.
“The president’s action is not reviewable under Administrative Procedure Act standards,” Schwei said.
Representing the Iranian Alliances Across Borders, attorney Mark Mosier with Covington Burling said that the implementation of the travel ban by federal agencies constitutes final agency action that the court can review under the Administrative Procedure Act.
Only by examining the underlying record can the court determine whether the proclamation was genuinely grounded in national security considerations, or rather fueled by discriminatory animus, Mosier argued.
Mosier said a critical part of that inquiry is understanding the proclamation’s waiver process, which he said the Supreme Court placed significant weight on in the government’s favor because it allows for a case-by-case determination on entry to the United States.
Anecdotal evidence, Mosier argued, shows that federal agencies are not implementing the waiver as intended. Showing that the government is denying entry to Muslims from the banned countries who are determined to pose no security threat would offer “powerful evidence” of discrimination, Mosier said.
As he did with Schwei, Chuang pressed Mosier to identify any part of the administrative record he could get.
“It seems to me you have to explain how you have a right to and can get additional information, and how that could change the result,” Chuang said.
Mosier pointed to a confidential 17-page worldwide threat assessment the administration said was based on extensive analysis of security risks, and the waiver process. He said any evidence that either are a “sham” would undermine the national security rationale that the Supreme Court upheld in Hawaii v. Trump.
A proper administrative record would shed light on how thorough the process underlying the proclamation was, Mosier argued.
Chuang expressed some skepticism the plaintiffs would be able to find anything that would demonstrate that the proclamation lacked a national security basis.
But Mosier noted that the Supreme Court ruled on the travel ban without the benefit of discovery. The justices weighed limited evidence in deciding that the plaintiffs in the case had not met the burden for preliminary injunctive relief.
Mosier noted Tuesday that a ruling on the preliminary injunction does not preclude arguments on the merits. At this stage, he said they need only bring a plausible claim to survive a motion to dismiss.
Chuang made no promises about when he would issue a ruling, saying only that he would have no immediate decision in the case.