President Trump’s revised travel ban is set to go into effect at 12:01 a.m. Thursday, but first the executive order must survive a gauntlet of legal challenges slated to be heard Wednesday in courtrooms across the country.
Those challenging the order say its provisions temporarily pausing refugee resettlement and blocking issuance of visas to prospective visitors from six majority-Muslims countries are too similar to the original order, which was put on hold by a federal judge amid concerns over constitutionality.
Government attorneys defending the order say the narrower scope, coupled with provisions that lay out a waiver process for those who might be affected, addresses the concerns of challengers calling for the courts to again halt implementation.
Two hearings are scheduled Wednesday in cases brought in Maryland and Hawaii to challenge the revised executive order rolled out March 6. A third hearing is possible, depending on what action is taken by a federal judge overseeing an additional challenge brought by the Washington state attorney general.
Under the order, citizens of six Muslim-majority countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — will be banned from obtaining visas to come to the United States for 90 days. Iraq was dropped from the original list of banned countries. The revised version still will halt all refugee resettlement for 120 days, though it removed the original order’s permanent ban on refugees from Syria and exemptions for religious minorities, namely Christians. It also lowers the number of refugees accepted by the U.S. this year from 110,000 people to 50,000 people.
While the ban is in effect, the Trump administration has pledged to develop an extreme-vetting program for all foreign visitors to the U.S., including a biometric entry/exit system to identify who is arriving to and departing from the country.
U.S. District Judge Theodore D. Chuang, who was nominated by President Obama, is set to hear the first challenge, brought by the International Refugee Assistance Project, at 9:30 a.m. Wednesday in Maryland. Assisted by the American Civil Liberties Union, IRAP alleges that provisions temporarily banning visas to citizens from the six countries, the pause of the refugee program and the reduction in refugees allowed into the country, coupled with language in the order “that associates Muslims with violence, terrorism, bigotry, and hatred,” will all cause significant harm.
“The March 6 Order will have the same discriminatory and stigmatizing impact on Muslims as the January 27 Order, which was itself a product of the President’s clearly expressed intent to prevent Muslims from entering the United States,” IRAP and other plaintiffs allege in their amended complaint seeking an injunction.
In a response in the Maryland case filed Monday, Justice Department attorneys argued that because revisions to the order allow anyone who currently holds a valid visa from the six affected countries to keep it when the order takes effect, that there is no emergency basis for hearing the challenges to the order before it takes effect.
“No immediate upheaval occurs as a result of the new Order taking effect on that date: No visa is revoked. No lawful permanent resident traveling abroad is barred from returning,” DOJ attorneys wrote. “Nobody lawfully in the United States loses any prior ability to leave the country to travel and later return.”
Supporters of Mr. Trump’s plan say he is on firm legal ground to restrict immigration and refugee programs on the basis of national security, but also note that because the order exclusively affects foreign nationals who do not yet have any approval to come to the United States, there is little basis for their legal challenge.
“There is no guarantee that anybody who wants to come to the U.S. may do so,” said Ira Mehlman, spokesman for the Federation for American Immigration Reform, a group that advocates for lower levels of legal and illegal immigration. “If you are outside the country and you do not have a valid visa, there is nothing in the law that says the U.S. has to give you one.”
But opponents say the discriminatory intent of the order, which they believe is supported by Mr. Trump’s comments on the campaign trail about seeking to enact a Muslim ban, remains even after the revisions.
“The new executive order suffers from the same pitfalls as the first one,” said Kathleen Kim, who teaches immigration law at the Loyola Law School in Los Angeles. “The travel ban is still clearly making a discriminatory preference for Christian foreign nationals as opposed to Muslim foreign nationals seeking entry.”
The second case to be heard Wednesday is Hawaii Attorney General Doug Chin’s challenge. U.S. District Judge Derrick Watson, another Obama nominee, has set the hearing for 3:30 p.m. Eastern.
Arguing for a temporary restraining order to prevent the refugee and visa components of the revised order from taking effect Thursday, Mr. Chin argued that the state’s residents, universities, businesses, health care systems and religious organizations will be harmed by the revised order.
The state’s complaint highlights the scenario feared by Ismail Elshikh, the imam of the Muslim Association of Hawaii, who worries that his mother-in-law, a Syrian national, would be barred from coming to the United States under the travel ban.
“The Order denies them their right to associate with family members overseas on the basis of their religion and national origin,” Hawaii’s complaint states. “And it results in their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.”
DOJ attorneys argued that Hawaii’s claim that individuals would be harmed by the travel ban was “speculative,” noting that neither “Elshikh’s mother-in-law or any other affected relative of a Hawaiian resident has yet sought, much less been denied, a waiver.”
“Until that happens, neither she nor Elshikh has suffered any injury fairly traceable to the Order,” DOJ attorneys wrote in their defense of the revised order.
“There is no basis to restrain the Order in the interim, and certainly no basis to restrain it nationwide,” DOJ attorneys wrote, asking that the temporary restraining order be denied.
If no judge takes action to block the travel ban from taking effect, how the administration handles the case-by-case refugee waiver requests could potentially spell legal trouble down the road, Ms. Kim said.
“Those that are applying for refugee status are going to be adjudicated case by case, with no clear guidelines on which refugees are permitted entry and which are not,” she said. “That expansion of discretion raises legal pitfalls that could include constitutional concerns.”
A third hearing could potentially be scheduled as early as Wednesday in the case brought by Washington Attorney General Bob Ferguson, in which he’s asked the federal judge to rule that a prior injunction which prevented the first order from being enforced also applies to the new order. The Justice Department is set to file a response Tuesday evening, after which point U.S. District Judge James Robart could issue a ruling or schedule a hearing to hear further arguments.
Jonathan Turley, a law professor at George Washington University, wrote last week that he believes the Trump administration will prevail in the long run, though it could first “face a mix of decisions on the lower courts as it did with the first order.”
“The new order is narrower in language and more supported in terms of foundation. Standing is also a very significant barrier in light of the exemption of permanent residents and green card holders,” Mr. Turley wrote on his blog. “However, this order is a better product and presumably the Justice Department will markedly improve its performance in the defense of the order.”
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