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The Washington state attorney general who stymied President Donald Trump’s original travel ban is doubling down for a new battle over the revised order issued three days ago.
In Trump fashion, the latest challenge to the White House’s authority over immigration was announced not in a court filing or even a press conference, but in a Twitter post.
“Defending the Constitution cannot be a game of whack-a-mole,” the office of Washington Attorney General Bob Ferguson tweeted Thursday.
As with the president’s first travel ban that sparked dozens of lawsuits and was halted by a federal court, Democratic state attorneys general are leading the charge to block Trump’s renewed push to make good on his campaign promise to curb immigration in the name of national security.
Hawaii was first to the courthouse this time, challenging the revised immigration restrictions as religious discrimination against Muslims. New York Attorney General Eric Schneiderman said he’ll join Ferguson’s effort minutes after Washington state said it will ask the Seattle judge who blocked the original ban nationwide to do the same for the new version.
Taking on another Trump cornerstone, the city of San Francisco is escalating its attack on a presidential edict to withhold funding from sanctuary cities.
The common issue is whether Trump’s executive orders violate the Constitution — in the travel ban cases, plaintiffs will try to prove Muslims are being singled out, while sanctuary cities contend the president has cast aside fundamental tenets of federalism. At the ground level, the outcome will determine who will be allowed to come to or remain in the U.S., and who might be left in limbo.
“The only way to stop this progression of unjustified executive power is through federal litigation,” said Geoffrey Hoffman, director of the University of Houston Law Center Immigration Clinic. “This is how you rein in the executive when it’s made various attempts at circumventing the constitution. These are both extremely viable causes of action.”
Actions on Wednesday and Thursday follow weeks of courtroom battles in which civil rights advocates and state attorneys general have assailed Trump’s temporary ban on immigrants from a handful of mostly Muslim countries. Having won the first round, those officials and organizations have been picking apart Trump’s more limited restrictions on immigrants and refugees as they ponder what to do before the new policy takes effect March 16.
Trump has repeatedly taken to Twitter to denounce court rulings against his original ban, including the Feb. 4 decision by U.S. District Judge James Robart that blocked the executive order from being enforced nationwide. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump said to his 26.3 million followers. Instead, a federal appeals court kept the travel ban on hold.
“You cannot tweet your way out of it,” Ferguson’s office said Thursday on Twitter. “That doesn’t work in a courtroom.”
Trump’s new travel ban, which bars people from Syria, Iran, Somalia and three other countries from entering the U.S. for 90 days, removes an exemption that would have favored Christians over Muslims and exempts lawful permanent residents, among other changes. That will likely make it more difficult to challenge than Trump’s previous executive order, legal experts said.
Hawaii’s case is the first attempt to halt the travel ban after being tailored to stand up to claims it discriminates on religious grounds. Trump’s stump-speech pledge to ban Muslim immigrants, which he softened later in the campaign, continues to be seen by critics as proof of the religious impetus for the travel ban, including the revised version.
Douglas Chin, the state’s attorney general, argues the re-worked ban still violates the Constitution’s establishment clause, which bars the government from favoring one religion over the other.
“The history of this executive order is rife with evidence that this has been, from start to finish, a Muslim ban,” said Neal Katyal, a lawyer with Hogan Lovells in Washington who’s representing Hawaii. “President Trump may now want to not call that spade a spade, but he’s done so many times before.”
At the core of Chin’s argument are Trump’s cries for a Muslim ban on immigration over the last 18-months. From July, 2015 to December, 2016, Trump made nearly a dozen references to a Muslim ban or registry as he emerged as the Republican party’s nominee and ultimately won the presidency.
Whether his campaign rhetoric will hurt him in court if presented as the catalyst for the travel ban may be the central question before federal judges in this second round of litigation over the executive order. By scraping away all references to religion in the latest ban, the stomp speeches that won Trump the Oval Office may be all the evidence of discriminatory intent challenging attorneys have at their disposal.
Hawaii also alleges that the order will harm the state’s tourism economy which generated $15 billion in revenue in 2015. It will also prevent the state’s residents with links to those six countries from freely traveling in and out of the country while promoting a culture of religious discrimination, according to the amended complaint.
After filing its initial lawsuit, the state added the imam of the Muslim Association of Hawaii as a co-plaintiff. Ismail Elshikh contends the Trump order subjects him, his family and members of his mosque to discrimination, denying them the right to travel. That includes his mother-in-law, who is Syrian and will be barred from coming to the U.S., Elshikh said.
U.S. District Judge Derrick Watson in Honolulu agreed to hear the state’s request for a temporary block on the ban on March 15, a day before the directive is set to go into effect.
The updated executive order has done a good job of at least hiding those motivations, making the religious discrimination argument less convincing in court, said Allan Ides, a professor at Loyola Law School in Los Angeles.
“You can point to all of that, but I don’t think that’s going to serve as strong evidence, especially after the White House backed down and changed things,” said Ides, who served as a court-appointed counsel on immigration cases before the U.S. Court of Appeals in San Francisco from 2004 to 2006. “It starts looking like a foolish exercise of executive power, but not necessarily an unconstitutional one.”
In a Maryland case, a judge will hear arguments March 28 on whether to block a part of Trump’s order limiting to 50,000 the number of immigrants who can enter the country. U.S. lawyers on Wednesday urged the judge to reject the request by a refugee resettlement group because the president has power to set the cap.
The American Civil Liberties Union and other immigrant rights groups also promise more lawsuits.
The strongest challenge to Trump’s immigration policies could come from San Francisco. The city and a Silicon Valley neighbor, Santa Clara County, are suing Trump over an executive order that threatens to cut funding to jurisdictions that provide a safe haven for undocumented immigrants without a criminal record.
City Attorney Dennis Herrera on Wednesday asked a judge to temporarily block the president’s directive, claiming San Francisco may lose up to $2 billion in direct and indirect federal funding if the policy is enforced; this while it tries to cobble together a balanced budget for its fiscal year starting July 1.
“With a stroke of his pen, President Trump is trying to seize the spending power that our Constitution entrusts to Congress,” Herrera said. “Then he’s using it as a weapon to illegally bully cities and counties across this country, potentially threatening funding for things like meals and medical care for seniors and low-income families.”
San Francisco is seeking a preliminary injunction to bar the president from withholding federal funds from the city.
–With assistance from Erik Larson Chris Dolmetsch and Andrew Harris
©2017 Bloomberg L.P.