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Beverly Hills, California, United States
Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Friday, March 10, 2017

Trump’s New Travel Ban May Be Hard to Beat. But States Are Trying.

New York Times
By Alexander Burns
March 9, 2017

President Trump’s executive order banning travel from six predominantly Muslim countries faced a new front of opposition from the states on Thursday, as the attorney general of Washington announced that he would seek to block the order from taking effect next week.

Backed by several fellow Democratic attorneys general, Bob Ferguson of Washington said he would ask a federal district judge, James Robart, to extend an order freezing the first version of Mr. Trump’s travel ban and apply it to the updated restrictions the White House unveiled on Monday.

In a news conference on Thursday, Mr. Ferguson acknowledged that Mr. Trump’s updated order was less sweeping than its predecessor. But he argued that the travel restrictions remained “effectively a Muslim ban,” with many of the same legal weaknesses as the first version.

“It’s fair to say that the revised executive order does narrow the scope of who’s impacted by it in an adverse way,” Mr. Ferguson said. “But that does not mean it has cured its constitutional problems.”

His announcement in Seattle opened a new phase in the legal battle over Mr. Trump’s attempt to sharply limit travel to the United States from a group of majority-Muslim countries — including Syria, Libya and Iran — as a collection of Democratic-leaning states that attacked the first ban increasingly mass their efforts behind Mr. Ferguson’s litigation.

Among the attorneys general backing Mr. Ferguson on Thursday were Eric T. Schneiderman of New York and Maura Healey of Massachusetts, both of whom dropped separate litigation against Mr. Trump to join Mr. Ferguson’s suit, and Ellen F. Rosenblum of Oregon. Mr. Ferguson and his colleagues, along with Attorney General Lori Swanson of Minnesota, are expected to file updated complaints aimed at taking down the new travel order in the coming days.

The attorney general of Hawaii, Doug Chin, who is also a Democrat, filed a separate lawsuit earlier this week challenging the constitutionality of Mr. Trump’s adjusted order and asking a different court to prevent it from going into effect.

The White House has projected confidence that Mr. Trump’s decree will survive the scrutiny of courts, after the rollout of his initial travel ban ended in a series of embarrassing legal defeats last month.

Sean Spicer, Mr. Trump’s chief spokesman, told reporters on Thursday that the White House was “very comfortable” with the defensibility of the new order. He said the administration was not concerned about the challenge filed by Hawaii.

Mr. Trump and his advisers have presented the travel regulations as an effort to protect national security and insist they are not motivated by religious discrimination, though Mr. Trump campaigned on banning Muslim travelers from entering the country.

“We feel very confident with how that was crafted and the input that was given,” Mr. Spicer said of the new order.

Still, the renewed legal assault on Mr. Trump’s policy could drag his administration into another messy court battle, even as Mr. Trump has tried to shift his attention away from the travel ban and toward a complex and politically fraught overhaul of the health care system.

In redrawing Mr. Trump’s executive order on travel from the Middle East, the administration had hoped to eliminate many of the vulnerabilities that doomed the first version. Federal courts imposed a national freeze on its implementation, prompting Mr. Trump to attack the judiciary — and Judge Robart specifically — in an outburst on Twitter.

Aiming to head off another courtroom quagmire, Mr. Trump explicitly exempted several categories of travelers from the revised ban, including green card holders and people with other existing visas, and eliminated a provision that would have given special treatment to Christians.

It also removed Iraq from the list of countries covered and got rid of a permanent ban on refugee admissions from Syria. And rather than taking immediate effect, like the first presidential decree, the new order has an effective date of March 16.

But Mr. Ferguson said Washington State would argue in court that it should be up to a judge, not Mr. Trump, to decide if his new policy can go into effect, given that a court blocked the implementation of a similar executive order while litigation unfolds.

Allowing Mr. Trump’s new order to go into effect, Mr. Ferguson said, could lead to a “game of whack-a-mole,” in which the president could answer any court’s rebuke by making modest tweaks to his own policy and then hastening to implement it.

Among Democratic attorneys general, there is broad consensus that Mr. Trump’s new order may be more difficult to fight in court. Mr. Ferguson repeatedly acknowledged that it would affect fewer people than the earlier order, while insisting that there was clear evidence that Mr. Trump intended the restrictions to function as a crackdown on Muslim travelers.

Mr. Ferguson said his office was in touch with a number of people and institutions that would be harmed by the new ban, including public universities and Washington residents with family overseas, in crafting its case against the executive order. Noah Purcell, the solicitor general of Washington State, said there had also been “conversations with businesses in Washington” about the order’s impact on the state.

Mr. Purcell also suggested that the state would highlight comments from Trump administration officials describing the new travel ban as a modest revision, to show that it was intended to dispense with legal challenges without meaningfully changing policy.

He appeared to be alluding in part to a statement from Stephen Miller, a senior aide to Mr. Trump, who said on television that the new ban would have the same “basic policy outcome” as the previous version.

Hawaii’s attorney general also cited Mr. Miller’s statement in his complaint challenging the new ban.

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