The legal battle over President Trump’s travel ban is heating up, with one day left before his revised executive order is slated to take effect.
The updated version faces challengers around the country who are scrambling to stop it in its tracks.
Trump’s new ban — issued last week after his initial ban became mired in legal challenges — prohibits travelers from six majority-Muslim countries from entering the U.S. for 90 days and suspends entrance for all refugees for 120 days.
The administration made several deliberate changes designed to hold up better in court, such as dropping Iraq from the list of banned nations, scrapping an indefinite ban on Syrian refugees and specifically exempting legal U.S. residents and certain visa holders.
Judges will be tasked with determining whether the new ban is substantially different from the first one and whether it inflicts any immediate harm on states or individuals that could warrant a temporary halt on its implementation.
Here are five cases to watch.
Much of the spotlight will remain on Washington state, where a federal judge in Seattle issued the nationwide restraining order that halted Trump’s original ban while a lawsuit proceeds. The 9th Circuit Court of Appeals later upheld that ruling. Neither court ruled on whether Trump’s order was unconstitutional, but they raised significant criticisms and potential weak points in the government’s case.
Now, Washington Attorney General Bob Ferguson is asking U.S. District Judge James Robart, a President George W. Bush appointee who issued the original restraining order, to apply the same freeze on portions of the new order while the overarching legal case is considered.
And Washington, which was joined by Minnesota in its original suit, is gathering reinforcements — California, Maryland, Massachusetts, New York and Oregon have joined the larger lawsuit, which claims economic harm, a lack of due process for travelers and discrimination.
In pushing for Robart to put the new order on ice, the plaintiffs argue that the core tenets of the first ban — suspending the refugee resettlement program and barring travel for certain nationals — are still in place and therefore should be blocked.
“Injunctions are not suggestions. When a court enjoins a defendant from enforcing policies, the defendant cannot evade the injunction by announcing that it will continue only some of the illegal policies,” Ferguson said in new court filings.
“Yet that is what defendants attempt here. The Court should reject this attempt to evade its authority and should exercise its broad power to enforce its injunction.”
Washington requested a hearing Tuesday on the emergency motion to enforce the court’s previous preliminary injunction. But Robart said a hearing, “if any,” would not be held until at least Wednesday. Robart ordered the Department of Justice to file a response by Tuesday at 4:30 p.m. local time, 7:30 p.m. Eastern.
“It’s going to be a tougher case for the plaintiffs than before, no question about it,” said Jay Holland, civil rights attorney with Joseph Greenwald & Laake.
Hawaii became the first state to file a new lawsuit against Trump’s revised travel ban last week.
In a narrower challenge similar to Washington’s, Hawaii is pushing for a temporary restraining order that would prevent parts of the new order from being implemented while a judge considers the case.
Hawaii Attorney General Doug Chin and former acting U.S. Solicitor General Neal Katyal will help represent the state and an individual affected by the order.
The lawsuit contends the travel and refugee provisions violate due process rights and religious freedom protections. It also says the policy would hinder educational institutions and tourism in the state.
U.S. District Judge Derrick Watson, a President Obama appointee, scheduled a hearing on the case for 3:30 p.m. Wednesday.
Department of Justice lawyers included in legal filings a letter from Attorney General Jeff SessionsJeff SessionsICE chief faces rowdy crowd at Calif. forum Letters: Why is FDA favoring real cigarettes over fake ones? Overnight Cybersecurity: First GOP lawmaker calls for Nunes to recuse himself | DHS misses cyber strategy deadline | Dems push for fix to cellphone security flaw MORE and Homeland Security Secretary John Kelly that argues the policy is necessary to protect national security and review immigration vetting procedures.
“At present, more than 300 persons who came to the United States as refugees are under investigation for potential terrorism-related activities,” the letter says. “There are currently approximately 1,000 pending domestic terrorism-related investigations, and it is believed that a majority of those subjects are inspired, at least in part, by [the Islamic State in Iraq and Syria].”
The San Francisco-based 9th Circuit Court of Appeals had criticized the administration in its earlier ruling for not providing evidence that the countries named in the order pose a heightened risk of terrorism.
Trump’s new order has suffered one legal setback so far.
In Wisconsin, a federal judge agreed to issue a narrow, temporary hold to prevent the policy from applying to a Syrian refugee and his family.
The refugee was granted asylum and fled to the U.S. in 2014, but he is working to bring over his wife and daughter, who are still living in the war-torn city of Aleppo.
U.S. District Judge William Conley, an Obama appointee, ruled that the plaintiff’s lawsuit over the new ban shows some likelihood of success based on the merits of the case because his family faces “significant risk of irreparable harm” if they stay in Aleppo.
The man filed the case under the name John Doe to protect his family’s identity.
“The court appreciates that there may be important differences between the original executive order, and the revised executive order,” Conley wrote. “As the order applies to the plaintiff here, however, the court finds his claims have at least some chance of prevailing for the reasons articulated by other courts.”
In the substantially revised ban, the administration specifically said legal permanent residents and current visa holders are not affected by the order, an effort to remove some of the states’ legal standing for bringing suits.
But specific cases like the one in Wisconsin could be used as an example of how residents could be harmed by the policy. A hearing on that case is set for 3 p.m. March 21.
Several nonprofit refugee groups — the International Refugee Assistance Project, HIAS Inc. and the Middle East Studies Association — and affected individuals are once again suing in Maryland to block the new ban.
Their lawsuit is much broader than others and asks the court to stop the order in its entirety.
The plaintiffs — represented by the American Civil Liberties Union, ACLU of Maryland and the National Immigration Law Center — argue that the repackaged ban is still a form of religious discrimination.
They have pointed to promises made by Trump on the campaign trail to create a “Muslim ban” and the fact the new ban still targets six countries that are predominately Muslim.
“He can’t erase where this order originated,” Cecillia Wang, deputy legal director for the ACLU, said during a press call on Tuesday. “For that reason, we and other litigants around the country are continuing to challenge the second order.”
The plaintiffs are also saying Trump’s decision to delay the new order — reportedly after his speech to Congress was so well received — undermines the administration’s argument that the ban is needed to address immediate national security concerns.
U.S. District Judge Theodore Chuang, appointed by Obama, teed up a hearing for 9:30 a.m. Wednesday.
The Council on American–-Islamic Relations is fighting the ban in Virginia. The lawsuit represents Muslim Americans and U.S. residents who are affected by the policy.
The plaintiffs are seeking a temporary restraining order on the ban while it’s considered by the court, and they requested a Wednesday hearing on their motion. They argue that the scaled-back ban still achieves the same outcome as the previous one.
“This watered-down ‘Muslim Ban 2.0’ was retooled to achieve the same unconstitutional policy outcome as the first deeply-flawed order,” said CAIR National’s executive director Nihad Awad in a statement.
The Justice Department wanted to have the hearing on Friday, after the ban is supposed to take effect, citing inclement weather in the region.
“Preparing a reasoned and comprehensive response to a lengthy complaint and motion within the timetable proposed by plaintiffs would be unreasonable,” the administration wrote.
“This unreasonability is compounded by the forecast for inclement weather, including snow and possible power outages, in both this District and Washington, D.C., over the next 36 hours.”
U.S. District Judge Anthony Trenga, a Bush appointee, sided with the administration, going even further than their request. He set the hearing for next week, on March 21.