A federal judge in Virginia just handed down one of the biggest defeats yet to President Donald Trump’s travel ban. Judge Leonie Brinkema issued a preliminary injunction barring enforcement of the ban in Virginia until it can be fully argued out in court. That means it could be weeks or months before overseas travelers are again blocked from coming into the country via Virginia’s international airports.
The case pitted the federal government, represented by lawyers from the Justice Department’s Civil Division, against the Commonwealth of Virginia, represented by State Solicitor General Stuart Raphael and Attorney General Mark Herring.
The 9th Circuit Court in San Francisco last week kept in place a temporary restraining order that a federal judge in Seattle issued against the order. That court’s ruling kept the travel ban from being enforced anywhere in the U.S., but it is only temporary. Brinkema’s order, meanwhile, will block the enforcement of the order in Virginia until any trial is done—at least.
Unlike temporary restraining orders, preliminary injunctions can become permanent. Some legal experts say the fact that Brinkema has issued this injunction means the Virginia case could potentially reach the Supreme Court before the Washington case—a possibility that reporters brought up to Herring when he held a press conference after the last round of oral arguments in that case on Feb. 10.
In her ruling, Brinkema wrote that it’s likely Virginia will successfully argue that Trump’s travel ban violates the First Amendment. The ruling cited Trump’s interview with Christian Broadcasting Network’s David Brody, where the president said his administration would prioritize the asylum claims of Christian refugees over refugees of other religions.
“The ‘Muslim ban’ was a centerpiece of the president’s campaign for months,” she wrote, “and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.”
And she wrote that just because the travel ban doesn’t impact all Muslims doesn’t mean it isn’t discriminatory.
“[T]he Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise,” she wrote. “It is a discriminatory purpose that matters, no matter how inefficient the execution.”
And the execution certainly had problems. At Dulles Airport the weekend after the ban was implemented, travelers from the seven banned countries—including green card holders, who have the legal right to live in the United States—were detained for hours. The airport’s international arrivals area filled with protesters, volunteer lawyers, and fearful family members, all hoping the people detained would eventually be let out. The same scene played out at airports around the country, until federal judges—including Brinkema—issued temporary restraining orders blocking the enforcement of Trump’s ban.
Tonight’s preliminary injunction means the legal fight over the ban is as intense as ever.