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Trump’s Revised ‘Vetting’ Executive Order Faces New Challenges In Courts

It took no time for court challenges to be filed within days of President Trump issuing his revised “extreme vetting” Executive Order as his administration dismissed the pending Ninth Circuit Court of Appeal’s continued consideration of the injunction on his initial Executive Order.

Washington and Minnesota quickly argued in response to the second Executive Order, in Washington v. Trump, that the administration is simply “attempting to evade the injunction by improperly repackaging previously enjoined conduct as a new Executive Order.”

In documents filed in federal court, Washington State Attorney General Bob Ferguson contended the injunction he obtained blocking key sections of Trump’s original immigration Executive Order also applies to the new version.

Ferguson said his new challenge is not a new lawsuit, but is an argument that the injunction also block the new Executive Order.

“My message to President Trump is — not so fast,” Ferguson said. “After spending more than a month to fix a broken order that he rushed out the door, the President’s new order reinstates several of the same provisions and has the same illegal motivations as the original. Consequently, we are asking [the court] to confirm that the injunction he issued remains in full force and effect as to the reinstated provisions.”

Washington filed the first state lawsuit challenging the administration’s order to restrict immigration from seven majority-Muslim nations and resettlement of refugees, which the order temporarily halted until proper vetting processes could be put in place.

Washington US District Court Judge James Robart issued a Temporary Restraining Order (TRO) on February 3 which stopped implementation of Trump’s initial Executive Order. The Ninth Circuit Court of Appeals upheld Robart’s order.

Key provisions of President Trump’s new Executive Order remain largely the same as the original travel ban and thus still subject to Ferguson’s lawsuit and injunction, Ferguson’s office said, adding, his “ongoing lawsuit asserts that President Trump’s travel ban unconstitutionally violates the First Amendment’s Establishment Clause and the Equal Protection Clause, by disfavoring Islam. Washington need not demonstrate that the ban impacts all Muslims, that it covers only Muslims or that it was motivated solely by anti-Islam animus. Rather, the state must establish that such animus was one motivating factor behind the Executive Order.”

His “lawsuit also claims that the President’s actions violate the Immigration and Nationality Act (INA), as well as the Administrative Procedures Act (APA). Similar allegations that the Obama Administration did not comply with the APA formed the basis for court decisions suspending President Obama’s immigration reform programs in Texas v. United States.”

The Attorney General’s Office said it anticipates filing an amended complaint on the underlying merits of the case early next week, noting Oregon and New York “will seek to join the case.”

In his Response to Defendants’ Notice of Filing of Executive Order, Ferguson stated, “When a court enjoins a defendant from implementing policies, the defendant cannot evade that injunction simply by reissuing the same basic policies in a new form. Courts do not issue injunctive relief in a game of whack-a-mole, forced to start anew at a defendant’s whim … (‘[N]either the plaintiff nor the court should be subjected to the unnecessary burden of re-establishing what has once been decided’). Of course, a defendant need not be bound forever by an injunction, and can request its modification or termination under well-settled rules, but it is the court—not the defendant—that decides whether modification is warranted.”

Meanwhile, Hawaii Attorney General Doug Chin announced the state of Hawaii has also “filed a motion for a temporary restraining order in its federal lawsuit against President Donald Trump, following the new Executive Order banning travel from six Muslim-majority nations …”

Chin’s “filings ask the court to declare that sections 2 and 6 of the March 6, 2017 Executive Order signed by President Trump are contrary to the Constitution and laws of the United States. The complaint asks for a nationwide injunction preventing the implementation of these sections of the Executive Order. The Executive Order restricts immigration from Iran, Syria, Somalia, Sudan, Libya and Yemen. It suspends all refugee admission for 120 days. It is scheduled to become effective on March 16, 2017.”

Chin said, “We all want safety and security in our state. But discrimination against people based on national origin or religion is a very dark path we must never accept. Respectfully, the new order fails to fix the initial defect.”

Hawaii argues the following:

  • “[W]hile the President signed a revised version on March 6 … we still know exactly what it means. It is another attempt by the administration to enact a discriminatory ban that goes against the fundamental teachings of our Constitution and our immigration laws, even if it is cloaked in ostensibly neutral terms. Strikingly, the Executive Order even admits that these changes were designed to ‘avoid * * * litigation.’”
  • “Nothing of substance has changed,” the filing states. “There is the same blanket ban on entry from Muslim-majority countries (minus one), the same sweeping shutdown of refugee admissions (absent one exception), and the same lawless warren of exceptions and waivers. The courts did not tolerate the administration’s last attempt to hoodwink the judiciary, and they should not countenance this one.”

The second amended complaint alleges the following causes of action:

  • Defendants have violated the establishment clause of the First Amendment;
  • Defendants have violated the equal protection, substantive due process and procedural due process guarantees of the Fifth Amendment;
  • Sections 2 and 6 of the March 6, 2017 Executive Order violate the Immigration and Nationality Act by discriminating on the basis of nationality, ignoring and modifying the statutory criteria for determining terrorism-related inadmissibility and exceeding the President’s authority under the Immigration and Nationality Act;
  • Defendants have violated the Religious Freedom Restoration Act by imposing a substantial burden on the exercise of religion; and
  • Defendants have violated the substantive and procedural requirements of the Administrative Procedure Act.

See Hawaii AG Chin’s second amended complaint, motion for a temporary restraining order, and memorandum in support of the motion for a temporary restraining order.

The American Immigration Council has also filed an amended complaint, a new request for injunctive relief and a new motion class certification in Ali v. Trump.

“On March 6, 2017, following a temporary restraining order issued in the related lawsuit Washington v. Trump, which blocked implementation of the first executive order, the Trump administration filed a new executive order. This new order not only bears the same name as the first executive order, it also continues the same unlawful and discriminatory practices perpetuated by the first order,” the group said.

“On March 10, 2017, the Council filed an amended complaint challenging the second executive order, as well as an amended request for a temporary restraining order and an amended request for class certification. This amended complaint makes clear that the second executive order is tainted with the same discriminatory animus as the first executive order, and should be blocked just as the first order was," the group added.

The group also filed an Emergency Motion for Temporary Restraining Order and a Preliminary Injunction.

“At issue in the Council’s suit is Section 2 of the second executive order. Like Section 3 of the first executive order, Section 2 suspends immigrant visa processing for nationals of six predominantly Muslim countries and prohibits nationals from these countries from entering the United States,” the group stated, noting, “This section violates an explicit statutory prohibition on discrimination in the issuance of immigrant visas ‘because of the person’s race, sex, nationality, place of birth or place of residence.’ It also violates Plaintiffs’ constitutionally protected rights to family, marriage and equal protection under the law, and the First Amendment’s Establishment Clause.”

Continuing, the group stated, “Plaintiffs and prospective class members seek judicial intervention to cease the application of the discriminatory executive order to persons in the immigrant visa process—US citizens and lawful permanent residents who have successfully petitioned for the immigration of a family member and nationals of the seven designated countries who have applied for visas—to prevent ongoing and future harm to these individuals.  Such intervention is needed to protect the integrity of the United States’ immigrant visa process and the families diligently seeking to reunite with their loved ones.”

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The Government Technology & Services Coalition's Homeland Security Today (HSToday) is the premier news and information resource for the homeland security community, dedicated to elevating the discussions and insights that can support a safe and secure nation. A non-profit magazine and media platform, HSToday provides readers with the whole story, placing facts and comments in context to inform debate and drive realistic solutions to some of the nation’s most vexing security challenges.

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