Suit is the first in a wave of challenges to rely on Trump’s past statements to overturn ban.
- By Kavitha SuranaKavitha Surana is an editorial fellow at Foreign Policy, where she produces breaking news and original reports with a particular focus on Europe and the Mediterranean. Previously, Kavitha worked at New York magazine’s Bedford + Bowery blog, CNNMoney, The Associated Press in Italy, and Fareed Zakaria GPS and has freelanced from Italy and Germany for publications like Quartz, Al Jazeera America, OZY, and GlobalPost/PRI. Much of her recent reporting has focused on migration policy, refugee issues, and European populism. In 2015, she was awarded a Fulbright trip to Germany, as well as a grant from the Heinrich Böll Foundation to report on migration and integration. She also reported from Senegal with a grant from the Bureau for International Reporting in 2014. Kavitha studied European history at Columbia University and holds a master’s degree in journalism and European studies from New York University. She has studied in Italy and Peru and speaks Italian, Spanish, Portuguese, and French.
Hawaii filed suit on Wednesday to temporarily block U.S. President Donald Trump’s revised travel ban, arguing the new executive order barring people from six Muslim-majority countries from traveling to the United States illegally discriminates against people based on their religion.
The case, which is poised to be the first of many fresh legal challenges to the new ban, seeks to use Trump’s and his allies’ words against them to argue that the executive order has a clear discriminatory intent, according to a proposed amended complaint filed in federal court. It may provide a blueprint for lawyers across the country trying to challenge the slimmed-down ban the administration unveiled Monday.
Lawyers said the revised ban dodges many of the legal and optical problems that saddled Trump’s first executive order, giving them a narrower path for challenging it in court. But they argued it has the same constitutional issues as the original ban. They plan to point to a trail of evidence, including the language of the old ban and Trump’s previous statements, to prove it still intends to discriminate against people on religious grounds.
“The president campaigned on a platform of banning Muslims from entering the United States, at least on a temporary basis, and I don’t see how any iteration of carrying out that campaign promise will be constitutional,” Billy Corriher, deputy director of legal progress at the Center for American Progress, said.
The revised ban halts refugees from entering the United States for 120 days and bans travel from six Muslim-majority countries, including Yemen, Somalia, Sudan, Iran, Syria and Libya. Iraq was dropped from the list after protests from senior U.S. military officials and Iraqi officials who said it would cause irreparable harm to U.S.-Iraqi relations.
The new ban also now clearly exempts legal permanent residents and people who already have valid visas, and it removed language giving preference to religious minorities. It also explicitly defends the previous order against accusations of religious discrimination. “That order was not motivated by animus toward any religion,” the order states, asserting that it was instead intended to protect all religious minorities.
These changes, coupled with the administration’s decision to slow the revised ban’s rollout, seem intended to avoid a repeat of the mass confusion and chaos that was set off by the first ban. That executive order was finalized without being widely vetted and implemented with almost no warning. Its rollout was accompanied by scenes of refugee families turned back from their planes and throngs of lawyers camped out at airports to free visa-holding travelers from detention.
Immigration lawyers who have been contesting the original ban concede the text of the new one renders many of the arguments against the first executive order moot. For example, the U.S. Court of Appeals for the Ninth Circuit decision that halted the ban rested on the case that the wholesale revocation of visas was a violation of the visa holders’ due process rights. But the new ban doesn’t target visa holders. And the foreign nationals who aren’t covered by a green card or a visa usually wouldn’t have standing to challenge the order in an American court.
“The new executive order has kind of removed the rug under some of the most potent arguments,” said Tyler Cullis, a legal fellow at the National Iranian American Council, which is currently part of a coalition of Iranian American groups challenging the EO.
But lawyers said changes made in the revised ban did nothing to mitigate its discriminatory intent. They pointed to Trump’s statements calling for a “total and complete shut down of Muslims entering the United States” and a trail of leaked drafts of the order that show its evolution. They also argued that even the cleaned up order can be seen as an admission of a mistake highlighting the intent behind the initial order.
Then there are the statements by former New York City Mayor Rudy Giuliani, a Trump ally, and Trump senior adviser Stephen Miller about efforts to implement a Muslim ban “legally.” And just hours after the new ban was announced, the Trump team sent out a fundraising email touting the order, saying it would restrict “immigration from six countries compromised by radical Islamic terrorism.”
Justin Cox, a lawyer at the National Immigration Law Center which is litigating cases against the original ban in Maryland and Brooklyn, has won lawsuits in the past against states that tried to bar Syrian refugees from being resettled in their states on religious-discrimination grounds. He said cases against the ban will follow a similar outline. The main difference is that the President of the United States is the defendant, he said.
“I think there will be this moment of truth when these cases really get litigated, almost a stress test of checks and balances of American democracy,” said Cox, who is pursuing cases against the old ban until March 15, when the new ban takes effect. “To what extend is the judiciary willing to accept bold-face lies from the president about the reasons for the action?”
The government will argue that only the contents of the new executive order should be evaluated, not the intent, and that using statements from the campaign trail to quash the order effectively ties the President’s hands to pursue any immigration restrictions at all, Cullis said. The Department of Justice declined to comment. The White House didn’t respond to a request for comment.
There is legal precedence for courts to look into the intent, especially when there is evidence about the intent. “Even where laws are written to be neutral, courts have looked behind them when their enactment was motivated by animus to a particular religious group,” William Stock, the president of the American Immigration Lawyers Association, told FP. He said other arguments will also be used.
Hawaii’s complaint enumerates eleven instances where Trump made comments related to intending a Muslim ban, including promises during his campaign and statements like “If I win, they’re going back!” about Syrian refugees. It also highlights statements and actions from the rollout of the first executive order, such as when Trump read the title of it and said “we all know what that means.”
But it doesn’t rest entirely on the religious-protection argument. Hawaii also said the ban would harm the state’s economy and educational institutions, and pose a hardship to Hawaiians with family members abroad who can’t reunite. A hearing is scheduled for March 15, a day before Trumps new ban is supposed to go into effect.
Upcoming legal challenges are likely to play out more slowly in many separate courts, without the drama of lawyers racing to the airport to help detained clients after the first ban went into effect, lawyers said. In some instances, existing challenges to the first travel ban could be amended to include the new one, they said. In other cases, fresh legal challenges will be filed.
That sets the ban up for a variety of conflicting decisions. “It depends on the judges,” said Corriher. Some who are inclined to only look at the wording of the order will deem it constitutional, he said, adding, “I think any honest look at the evidence on the intent behind this shows that it is targeting the Muslim community.”
This post was updated Mar. 9 at 6:52 a.m.
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