Why Hawaii leads the legal challenge to Trump's latest travel ban

Hawaii is revamping its challenge to President Trump's initial immigration order to reflect its opposition to the second iteration of the policy, bringing a suit against the new ban before the administration implements it.

First Look

Just a day after its unveiling, President Trump’s revised immigration order is facing a legal challenge from the state of Hawaii, with more organizations and officials considering similar action.

In a 40-page filing, the state's attorneys ask the federal district court in Hawaii to issue a temporary restraining order blocking the new executive order on immigration, which Mr. Trump signed Monday. The state had filed a suit regarding the first order, but the case was put on hold once a federal judge stalled the action nationally.

Now, Hawaii, along with local imam Ismail Elshikh, has revamped the challenge and brought it against the second order.

“This second Executive Order is infected with the same legal problems as the first Order — undermining bedrock constitutional and statutory guarantees,” attorneys wrote in the request, which was filed late Tuesday night.

Trump’s highly anticipated revised immigration order has drawn speculation for more than a month. Many wondered if, and how, the administration could overcome legal hurdles and public protest with a second draft that was intended, as many have argued, to enact a religiously biased ban on immigration.   

And as the second order became public Monday, immigrant and Muslim advocates, legal experts, and attorneys general from various states responded with similar concerns.  The second White House executive avoids some of the obvious legal challenges levied against the first. But legal experts say the core issues, such as a possible violation of the First Amendment’s Establishment Clause, which prevents Congress from establishing an official religion or prohibiting religious expression, could make the latest order vulnerable to certain kinds of suits.

But such suits will likely prove more difficult to win a second time around. 

“Overall, I think Hawaii has done a great job pulling this together. But because this revised order addresses the due-process concerns that were so problematic in the first order, it is going to be a much harder sell to get a court to intervene,” says Rebecca Hamilton, a law professor at American University and expert on national security law.

“As a matter of policy, the revised order is as flawed as the original. As a matter of law, it’s on much more solid footing,” she adds.

The second order excludes a previous ban on current green-card and visa holders from the nations in question, and also drops Iraq from the list. It mirrors the first order by placing a temporary ban on travelers from six predominantly Muslim countries, now including Iran, Somalia, Yemen, Syria, Sudan, and Libya, and it also places a four-month hold on refugees. The order would come into effect on March 16, rather than immediately, as the previous iteration did.

The alterations would reshape aspects of the order that resulted in abrupt changes for travelers and drove hundreds of protesters to airports around the country. But it doesn’t placate concerns that the ban stems from a bias against Muslims and a desire to ban them in some capacity, a policy that Trump championed on the campaign trail.

“Given that the new Executive Order began life as a ‘Muslim ban,’ its implementation also means that the State will be forced to tolerate a policy that disfavors one religion and violates the Establishment Clauses of both the federal and state constitutions,” the filing argues.  

For many, the order still represents the “Muslim ban” the president often spoke of implementing.

"This new executive order is nothing more than Muslim Ban 2.0," Hawaii Attorney General Doug Chin said in a statement Monday. "Under the pretense of national security, it still targets immigrants and refugees. It leaves the door open for even further restrictions."

In the filing, attorneys argue that the new order would impact Hawaii’s universities, tourism industry, and current Muslim residents. Already, they noted, the number of Middle Eastern visitors dropped to 278 in January, down from 348 the year before.

They also aired concerns about a potential “chilling effect” the policy could place on tourism, discouraging travelers from other nations in the Middle East and Africa who no longer view the United States as a place where travelers of all religious can peacefully vacation. 

But the crux of the suit centers around Dr. Elshikh, the additional plaintiff. An American citizen and father of three, Elshikh is the imam of the Muslim Association of Hawaii. The filing argues that the order would impact citizens like him, not just foreign travelers and potential refugees.

“Dr. Elshikh’s children, all twelve years of age or younger, are deeply affected by the new Executive Order,” the filing says. “It conveys to them a message that their own country would discriminate against individuals who share their ethnicity, including members of their own family, and who hold the same religious beliefs.”

That argument could have an impact on how judges see the order.

“People who are in this country are very much affected” by the order, says Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, noting that any state-sponsored religious discrimination can have adverse effects on Americans who celebrate that religion, whether that be hate crimes or a sense they dwell in a kind of second-class citizenship. 

Attorneys also argue that Elshikh's mother-in-law, who is Syrian, would face additional hurdles to come visit the family under the new order. 

Under the previous order, Elshikh’s mother-in-law was barred from entering the US, although she was in the process of securing a travel visa and was deemed not a security risk. Under the new order, she could apply for a waiver, an option made available to potential university employees or students or those seeking medical attention from US specialists.

Still, Ms. Hamilton says, one could argue that provision places an undue burden on Muslims and citizens of those nations that does not apply to other travelers.

Observes expect more legal action to follow Hawaii’s revamped challenge if the appeals court does not expand the halt placed on the first order. But until then, it will be difficult for attorneys to craft a successful case calling for an immediate restraining order without evidence of immediate harm.

Should the order move forward, many previous cases could follow suit. 

“In most of the cases, the plaintiffs will still have standing,” Ms. Goitein says. “They will be bringing the same claims. The First Amendment is very straightforward and that goes to the heart of the order, which is singling out majority-Muslim countries in the absence of any solid evidence that there’s a national security justification.”

Following the announcement of the order, several others came forward to denounce it.

“While this is a major political defeat for the Trump administration, we cannot be complacent,” Nihad Awad, the executive director of the Council on American-Islamic Relations, said in a press conference Monday. “We must continue to fight this discriminatory and unconstitutional executive action.”

The ACLU, which responded swiftly to the first executive order and detention of travelers, has echoed that sentiment.

“We believe that it’s still a Muslim ban because everything the president said leading up to the first ban said it was,” Lee Gelernt, deputy director of the ACLU’s National Immigrants’ Rights Project and attorney who argued against the first order, tells the Monitor. “And because the first ban itself had discriminatory language. We don’t believe that you can eliminate the discriminatory taint simply by tweaking the order at this late stage.”

If implemented next week, the new order will likely have a masked impact compared to the first. Still, many say, courts could still interpret it as a violation of religious freedom, noting the ways in which it continues to impact a smaller group of people.

“The human suffering was so visible for everyone to see” with the first order’s immediate rollout, Goitein says. “That not only affected public sentiment, it presumably had some effect on the courts as well. They’re not made of stone."

Under the new order, she says, "the human suffering will be just as acute, it just won’t be as visible. It’ll be in Syria, where families are dying in the war, and it will be in countries where family members are not able to even get on the plane to come see their loved ones.”

This report contains material from the Associated Press.