New York Times
By Alexander Burns
March 8, 2017
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.
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.
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.
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.
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.
“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.”
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.
Among other Democratic attorneys general, there is concern that the new order may be drawn carefully enough to survive the scrutiny of a court.
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.
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.
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.
Mr. Chin said the president had also acknowledged to the group that “a lot of us wouldn’t like how he was approaching that.”
A spokesman for the White House did not respond to a request for comment on the Hawaii and San Francisco cases.
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.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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