Why Hawaii leads the legal challenge to Trump's latest travel ban
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Just a day after its unveiling, President Trump鈥檚 revised immigration order is facing a legal challenge from the state of Hawaii, with more organizations and officials considering similar action.
In a 40-page filing, the state's attorneys ask the federal district court in Hawaii to issue a temporary restraining order blocking the new executive order on immigration, which Mr. Trump听signed Monday. The state had filed a suit regarding the first order, but the case was put on hold once a federal judge stalled the action nationally.
Now, Hawaii, along with local imam Ismail Elshikh, has revamped the challenge and brought it against the second order.
鈥淭his second Executive Order is infected with the same legal problems as the first Order 鈥 ,鈥 attorneys wrote in the request, which was filed late Tuesday night.
Trump鈥檚 highly anticipated revised immigration order has drawn speculation for more than a month. Many wondered if, and how, the administration could overcome legal hurdles and public protest with a second draft that was intended, as many have argued, to enact a religiously biased ban on immigration. 听听
And as the second order became public Monday, immigrant and Muslim advocates, legal experts, and attorneys general from various states responded with similar concerns. 听The second White House executive avoids some of the obvious legal challenges levied against the first. But legal experts say the core issues, such as a possible violation of the听First Amendment鈥檚 Establishment Clause, which prevents Congress from establishing an official religion or prohibiting religious expression, could make the latest order vulnerable to certain kinds of suits.
But such suits will likely prove more difficult to win a second time around.听
鈥淥verall, I think Hawaii has done a great job pulling this together. But because this revised order addresses the due-process concerns that were so problematic in the first order, it is going to be a much harder sell to get a court to intervene,鈥 says Rebecca Hamilton, a law professor at American University and expert on national security law.
鈥淎s a matter of policy, the revised order is as flawed as the original. As a matter of law, it鈥檚 on much more solid footing,鈥 she adds.
The second order excludes a previous ban on current green-card and visa holders from the nations in question, and also drops Iraq from the list. It mirrors the first order by placing a temporary ban on travelers from six predominantly Muslim countries, now including Iran, Somalia, Yemen, Syria, Sudan, and Libya, and it also places a four-month hold on refugees. The order would come into effect on March 16, rather than immediately, as the previous iteration did.
The alterations would reshape aspects of the order that resulted in abrupt changes for travelers and drove hundreds of protesters to airports around the country. But it doesn鈥檛 placate concerns that the ban stems from a bias against Muslims and a desire to ban them in some capacity, a policy that Trump championed on the campaign trail.
鈥淕iven that the new Executive Order began life as a 鈥楳uslim ban,鈥 its implementation also means that the State will be forced to tolerate a policy that disfavors one religion and violates the Establishment Clauses of both the federal and state constitutions,鈥 the filing argues. 听
For many, the order still represents the 鈥淢uslim ban鈥 the president often spoke of implementing.
"This new executive order is nothing more than Muslim Ban 2.0," Hawaii Attorney General Doug Chin said in a statement Monday. "Under the pretense of national security, it still targets immigrants and refugees. It leaves the door open for even further restrictions."
In the filing, attorneys argue that the new order would impact Hawaii鈥檚 universities, tourism industry, and current Muslim residents. Already, they noted, the number of Middle Eastern visitors dropped to 278 in January, down from 348 the year before.
They also aired concerns about a potential 鈥渃hilling effect鈥 the policy could place on tourism, discouraging travelers from other nations in the Middle East and Africa who no longer view the United States as a place where travelers of all religious can peacefully vacation.听
But the crux of the suit centers around Dr. Elshikh, the additional plaintiff. An American citizen and father of three, Elshikh is the imam of the Muslim Association of Hawaii. The filing argues that the order would impact citizens like him, not just foreign travelers and potential refugees.
鈥淒r. Elshikh鈥檚 children, all twelve years of age or younger, are deeply affected by the new Executive Order,鈥 the filing says. 鈥淚t conveys to them a message that their own country would discriminate against individuals who share their ethnicity, including members of their own family, and who hold the same religious beliefs.鈥
That argument could have an impact on how judges see the order.
鈥淧eople who are in this country are very much affected鈥 by the order, says Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, noting that any state-sponsored religious discrimination can have adverse effects on Americans who celebrate that religion, whether that be hate crimes or a sense they dwell in a kind of second-class citizenship.听
Attorneys also argue that Elshikh's mother-in-law, who is Syrian, would face additional hurdles to come visit the family under the new order.听
Under the previous order, Elshikh鈥檚 mother-in-law was barred from entering the US, although she was in the process of securing a travel visa and was deemed not a security risk. Under the new order, she could apply for a waiver, an option made available to potential university employees or students or those seeking medical attention from US specialists.
Still, Ms. Hamilton says, one could argue that provision places an undue burden on Muslims and citizens of those nations that does not apply to other travelers.
Observes expect more legal action to follow Hawaii鈥檚 revamped challenge if the appeals court does not expand the halt placed on the first order. But until then, it will be difficult for attorneys to craft a successful case calling for an immediate restraining order without evidence of immediate harm.
Should the order move forward, many previous cases could follow suit.听
鈥淚n most of the cases, the plaintiffs will still have standing,鈥 Ms. Goitein says. 鈥淭hey will be bringing the same claims. The First Amendment is very straightforward and that goes to the heart of the order, which is singling out majority-Muslim countries in the absence of any solid evidence that there鈥檚 a national security justification.鈥
Following the announcement of the order, to denounce it.
鈥淲hile this is a major political defeat for the Trump administration, ,鈥 Nihad Awad, the executive director of the Council on American-Islamic Relations, said in a press conference Monday. 鈥淲e must continue to fight this discriminatory and unconstitutional executive action.鈥
The ACLU, which responded swiftly to the first executive order and detention of travelers, has echoed that sentiment.
鈥淲e believe that it鈥檚 still a Muslim ban because everything the president said leading up to the first ban said it was,鈥 Lee Gelernt, deputy director of the ACLU鈥檚 National Immigrants鈥 Rights Project and attorney who argued against the first order, tells the Monitor. 鈥淎nd because the first ban itself had discriminatory language. We don鈥檛 believe that you can eliminate the discriminatory taint simply by tweaking the order at this late stage.鈥
If implemented next week, the new order will likely have a masked impact compared to the first. Still, many say, courts could still interpret it as a violation of religious freedom, noting the ways in which it continues to impact a smaller group of people.
鈥淭he human suffering was so visible for everyone to see鈥 with the first order鈥檚 immediate rollout, Goitein says. 鈥淭hat not only affected public sentiment, it presumably had some effect on the courts as well. They鈥檙e not made of stone."
Under the new order, she says, "the human suffering will be just as acute, it just won鈥檛 be as visible. It鈥檒l be in Syria, where families are dying in the war, and it will be in countries where family members are not able to even get on the plane to come see their loved ones.鈥
This report contains material from the Associated Press.