Wall Street Journal
By Brent Kendall
March 14, 2017
WASHINGTON—President Donald Trump’s revised executive order on immigration and refugees faces a potentially dramatic array of legal tests Wednesday, the day before it is scheduled to go into effect.
Federal judges in Hawaii and Maryland will hold hearings on whether to prohibit immediate implementation of the revised order, which temporarily bars new visas for travelers from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. The revised order, signed by the president on March 6, also temporarily suspends the admission of refugees into the U.S.
The administration says these measures are needed to protect the country from terrorist threats. Critics, including Democratic-led states and civil-liberties groups, say the travel restrictions are an illegitimate attempt by the president to fulfill a campaign promise to ban Muslims from the U.S.
In addition to the two scheduled court hearings, a judge in Seattle who played a big role in derailing the first White House travel ban is deciding how to proceed in round two of the case there, which centers on litigation brought by the state of Washington. Democratic attorneys general from five other states have now joined that challenge.
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“When a court enjoins a defendant from enforcing policies, the defendant cannot evade the injunction by announcing that it will continue only some of the illegal policies,” Washington state lawyers argued in their court motion to Judge Robart this week.
The Justice Department, which is defending the travel restrictions, responded to the states in a legal brief late Tuesday, saying the new order was “undoubtedly substantially different” from the old one. Justice responded earlier in the Hawaii case, saying Mr. Trump has clear and broad authority over U.S. borders.
Hawaii’s position “would completely disable the president from restricting the entry of immigrants from any country—even one with which the United States was on the verge of war,” the department said.
Taken together, Wednesday’s legal maneuvers will go a long way to determining whether the White House, in scaling back the original order, has successfully responded to a series of negative court rulings on the first version. If no judge blocks the revised executive order, it will take effect at 12:01 a.m. on Thursday.
Mr. Trump issued the new order after courts found his first attempt to restrict travel, issued a week after his inauguration, likely violated the Constitution.
The original order, which barred travel from Iraq as well as the other six countries and applied to a broader class of people, prompted more than two dozen lawsuits, including some involving travelers detained or denied entry at U.S. airports amid confusion over the president’s policy.
The rollout of the new restrictions has been more orderly, with Mr. Trump providing 10 days of advance notice and exempting green-card recipients and visa holders who have already been screened and approved for U.S. entry.
The concessions may be responsible for the fewer total lawsuits this time around, though the cases that have been filed are just as consequential.
The Hawaii case, brought by state attorney general Doug Chin, was the first. The state argued that even if Mr. Trump’s new order is less legally problematic in some respects, it still unlawfully discriminates against Muslims. The travel restrictions hurt employers, universities, families and tourism, Hawaii said in its lawsuit.
The Justice Department said Hawaii had no legal basis on which to bring its case because the state’s alleged harms were “mere speculation.”
The Maryland case involves a challenge filed by the American Civil Liberties Union on behalf of refugee assistance organizations and others.
Challengers in both the Hawaii and Maryland cases are seeking a nationwide block of the travel restrictions while the litigation continues. The judges in both cases—Judge Derrick Watson in Hawaii and Judge Theodore Chuang in Maryland—are appointees of President Barack Obama.
In addition to the immediate travel restrictions, they are contesting additional parts of the executive order such as Mr. Trump’s decision to cap the annual total admission of refugees at 50,000, as opposed to the 110,000 the Obama administration originally set for 2017.
Other cases against the revised executive order have been filed in recent days, including in California and Virginia. But because of the later timing of those cases, they may not matter as much for the immediate fate of the White House effort, at least in the early going.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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