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Hawaii Sues to Block Trump Travel Ban; First Challenge to Order Hawaii Sues to Block Trump Travel Ban; First Challenge to Order
(about 11 hours later)
President Trump’s revised executive order barring citizens of six predominantly Muslim countries from traveling to the United States confronted its first legal challenge late Tuesday, the day after it was signed, when the State of Hawaii asked a federal judge to block it temporarily. President Trump’s immigration policies faced a pair of new challenges in court on Wednesday, as the attorney general of Hawaii alleged that Mr. Trump had violated the Constitution with his redrawn executive order banning travel from six predominantly Muslim countries.
The court filing from the office of the attorney general of Hawaii, Doug Chin, a Democrat, may signal a wave of legal assaults on Mr. Trump’s second take on the travel ban, which preserves the fundamentals of the first while lifting restrictions on Iraqis, green card holders and lawful permanent residents, and people who are already approved to enter the United States. And in California, the city attorney of San Francisco asked a federal judge to issue an injunction blocking another executive order, which threatens to withdraw funding for so-called sanctuary cities that do not extensively cooperate with federal immigration enforcement officials.
The White House revised the order with an eye toward avoiding the chaos that rippled through airports after the first version was signed in late January. It also sought to patch up the first executive order’s legal vulnerabilities, which became apparent after a federal judge in Washington State issued a nationwide injunction against the travel ban. Both actions show how emboldened Mr. Trump’s opponents are to attack his policies through litigation, after a series of lawsuits brought by state attorneys general and nonprofit groups derailed his first travel ban last month.
Lawyers for Hawaii, which is also being represented by the law firm Hogan Lovells, argue that the administration’s changes are not much of an improvement. The latest filing noted that one of Mr. Trump’s top aides told Fox News in late February that while the new directive would address the legal issues that had arisen around the ban, “you’re still going to have the same basic policy outcome for the country.” In the Hawaii case, the state attorney general, Doug Chin, a Democrat, claimed in a legal filing that Mr. Trump’s new order would damage the state’s educational institutions and private businesses, including its lucrative tourism industry, and discriminate against families with relatives overseas.
Neal Katyal, a former acting solicitor general in the Obama administration who heads the Hogan Lovells team, said Tuesday, “We absolutely agree with the president’s senior adviser, Stephen Miller, who said this executive order is the same as the last one.” Mr. Katyal said, “The same legal problems that infected the first one infect version 2.0.” Mr. Chin said in an interview that despite changes Mr. Trump made to his first executive order, the new one amounted to the same policy “dressed up differently.” He said Mr. Trump’s travel ban had stirred strong opposition in Hawaii, where people still recall federal policies that targeted Asian-Americans for discrimination, from the Chinese Exclusion Act to the internment of Japanese-Americans in World War II.
Still, some legal specialists say the revisions may help the administration dodge the legal pitfalls of the initial ban. “This order brings back memories for a lot of people here,” Mr. Chin said. “Any time you have an executive order or some government decision that’s calling out people by their nation of origin or by religion, we’ve got to be a check against that.”
In the court papers, lawyers for the state argued that the new order discriminates against Muslims, even if it affects fewer people than the previous one. But it is unclear whether Hawaii’s legal challenge can halt Mr. Trump’s revised executive action the way a Washington State lawsuit doomed his first version.
“Given that the new executive order began life as a ‘Muslim ban,’ its implementation also means that the state will be forced to tolerate a policy that disfavors one religion,” the lawyers wrote. They listed 15 separate instances in which Mr. Trump or his advisers tied the travel restrictions to Muslims or Islam. Among other Democratic attorneys general, there is concern that the new order may be drawn carefully enough to survive the scrutiny of a court.
In addition, the state said, the ban “is inflicting immediate damage to Hawaii’s economy, educational institutions, and tourism industry; and it is subjecting a portion of the state’s citizens to second-class treatment and discrimination, while denying all Hawaii residents the benefits of an inclusive and pluralistic society.” Several attorneys general from states that challenged Mr. Trump’s original travel ban, including New York, Massachusetts and Washington, have said they are still studying the new order to determine whether they believe it is constitutional.
It also said Hawaiians and other Americans would be cut off from family members living in the six countries affected by the ban. One plaintiff in the lawsuit is Ismail Elshikh, imam of the Muslim Association of Hawaii and an American citizen of Egyptian descent, whose Syrian mother-in-law will most likely be barred from visiting the family in Hawaii. Mr. Chin, 50, a deep-voiced career litigator who was appointed to his post, rather than elected, has shown an appetite for challenging Mr. Trump in recent weeks. At a meeting between Mr. Trump and state attorneys general last week in Washington, Mr. Chin pressed Mr. Trump to defend the thinking behind his attempts to crack down on travel from the Middle East.
A spokeswoman for the Justice Department declined to comment on Wednesday. Mr. Trump replied by asking if Mr. Chin was among the attorneys general who had sued over his travel ban, and then said he was trying to “make America safe,” according to Mr. Chin and two other people who were present for the meeting.
Hawaii was one of 18 states, including New York, Massachusetts, Virginia and Washington, fighting the first ban in court. The states argued that the ban, which also restricted the nation’s refugee program, was damaging individuals and businesses in their states and that it discriminated against Muslims. Mr. Chin said the president had also acknowledged to the group that “a lot of us wouldn’t like how he was approaching that.”
After a federal appeals court upheld the Washington State judge’s nationwide restraining order in early February, the proceeding in Federal District Court in Hawaii were paused. A spokesman for the White House did not respond to a request for comment on the Hawaii and San Francisco cases.
But lawyers for Hawaii now argue that the new travel ban, which is to go into effect on March 16, effectively supplants the previous one and the legal action surrounding it. Tuesday’s filing asked the federal court to unfreeze the Hawaii case, allowing a new legal challenge to go forward. Even amid the multiplying legal challenges to Trump administration policies, both actions stand out for their aggressive approach. While many mayors have denounced Mr. Trump’s threat to withhold federal funding from cities on the basis of immigration policy, they have also largely declined to take pre-emptive action against the presidential order, pledging to do so in the event that he actually carries out his threat.
In San Francisco on Wednesday, the city attorney, Dennis Herrera, argued that a district court should prevent Mr. Trump from even trying to enforce his order while the city challenges its legality. Mr. Herrera said that because the city budget relies on federal funding, San Francisco could not develop a realistic spending plan “under a cloud of uncertainty and a budgetary sword of Damocles.”
“This court action is designed to protect our residents and provide financial clarity,” Mr. Herrera said in a statement.
Santa Clara County, Calif., has also requested an injunction against Mr. Trump’s immigration enforcement order, for similar reasons.
Karen Tumlin, the legal director of the National Immigration Law Center, which opposes Mr. Trump’s travel ban and his order on sanctuary cities, called the legal actions on Wednesday a forerunner to other forceful challenges in the coming days.
Ms. Tumlin said the injunction requests in California were especially important because there had not yet been a “significant rebuke” to Mr. Trump’s sanctuary city order in court, allowing an atmosphere of deep anxiety to take hold in cities and immigrant communities.
“We need clarity and pushback on this executive order to address that problem,” she said.
On the travel ban, Ms. Tumlin said there would most likely be a “flurry of court activity” before Mr. Trump’s new order takes effect next week, not only from Hawaii.
So far, Hawaii is the only state to take action against the new order, and it has retained an outside lawyer, Neal Katyal, a former acting solicitor general in the Obama administration.
Mr. Chin said he recognized that other states were still “thinking about the approach they want to take,” but that he was comfortable being the first to move.
Unlike the original ban, Mr. Trump’s new order preserves travel rights for several groups that typically receive greater consideration from federal courts, like permanent residents and people with active visas. And it no longer provides for special treatment for Christians and other religious minorities in the predominantly Muslim countries affected by the ban.
James E. Tierney, a former attorney general of Maine who works extensively with current state attorneys general, said most Democrats were approaching Mr. Trump’s new order cautiously.
Mr. Tierney, a Democrat, said state lawyers were “researching the constitutionality” of the order before settling on a public course of action.
“They believe strongly that just because they don’t like something, doesn’t mean it is unconstitutional,” Mr. Tierney said.
If the Hawaii lawsuit faces uncertain odds, it may still have the effect of putting pressure on other blue states to sue over Mr. Trump’s order, or to join with advocacy groups that intend to file lawsuits of their own.
In the wave of litigation against the first, abruptly issued order, a number of attorneys general cited the massive disruption it caused for travelers with legal rights to enter the United States, as well as the damage it might do to state universities, public hospitals and other government-backed institutions.
But Mr. Trump’s new order is more carefully tailored, and Hawaii’s lawsuit relies on a more limited set of claims. It emphasizes the possibility that people with single-use or expiring visas might be blocked from traveling, and that lawful residents of Hawaii might be inappropriately blocked from sponsoring family members from overseas to join them in the United States.
The complaint — a revised version of the document Mr. Chin’s office filed as a challenge to Mr. Trump’s first order — also cites comments last month by Stephen Miller, a senior aide to Mr. Trump, describing any changes to the initial travel ban as technical adjustments intended to preserve the same “basic policy outcome.”
A federal judge has scheduled a hearing for March 15 to consider Hawaii’s request for a temporary block on Mr. Trump’s order. The order is scheduled to go into effect on March 16.