Washington state's attorney general, who successfully sued to block President Trump's first travel ban, said Thursday he will join Hawaii in challenging the revised version.
Attorney General Bob Ferguson told reporters he will ask a federal court to apply the current temporary restraining order to the new ban, arguing it still suffers from legal flaws despite significant changes.
"We’re asserting that the president cannot unilaterally declare himself free of the court’s restraining order and injunction," Ferguson told reporters. “It’s our view that that temporary restraining order that we've already obtained remains in effect.”
Shortly after, New York state attorney general Eric Schneiderman announced he would join Washington's legal challenge to the ban. The new administration's "latest Muslim Ban" seeks to accomplish "the same unlawful and unconstitutional outcomes as the original order," he said.
Last month, a federal judge in Seattle issued the temporary restraining order halting the initial ban after Washington state and Minnesota sued. The 9th U.S. Circuit Court of Appeals refused to reinstate the order, which applied nationwide.
The revised executive order bars new visas for people from six predominantly Muslim countries — Iran, Syria, Somalia, Sudan, Yemen and Libya — and temporarily halts the U.S. refugee program. The ban does not apply to persons with green cards or travelers who already have visas.
While acknowledging that the administration's new order has been "narrowed," Ferguson added: "That does not mean that it’s cured its constitutional problems.”
Defending the Constitution "cannot be a game of whack-a-mole," he said.
Ferguson's announcement came a day after Hawaii became the first state to sue to block the revised ban, arguing it will disrupt families, harm Hawaii’s Muslim population, tourism and foreign students and is "antithetical to Hawaii's state identity and spirit."
The Trump administration had gone back to the drawing board after Washington state's legal challenge of the initial ban convinced the court to temporarily block it.
"For many in Hawaii, including state officials, the executive order conjures up the memory of the Chinese Exclusion Acts and the imposition of martial law and Japanese internment after the bombing of Pearl Harbor," the suit, filed by Attorney General Douglas Chin, asserts.
“Hawaii is special in that it has always been non-discriminatory in both its history and constitution,” Chin said. “Twenty percent of the people are foreign-born, 100,000 are non-citizens and 20% of the labor force is foreign-born.”
Attorneys for the state filed the lawsuit Wednesday in federal court in Honolulu. The state previously sued over Trump’s initial travel ban, but that lawsuit was put on hold while other cases played out across the country. Hawaii told the court it intended to file an amended lawsuit to cover the new ban, which is set to go into effect March 16.
In its complaint, Hawaii says it is suing to protect its residents, businesses and schools, as well as its “sovereignty against illegal actions of President Donald J. Trump and the federal government.”
A plaintiff in the case is Imam Ismail Elshikh of the Muslim Association of Hawaii, who says the ban will keep his Syrian mother-in-law from visiting. The complaint, clearly aimed at establishing legal standing for bringing the suit, says Trump’s “executive order inflicts a grave injury on Muslims in Hawaii, including Dr. Elshikh, his family, and members of his mosque."
The complaint, in emphasizing what it asserts is the intent of the executive order, notes comments made by Trump during the presidential campaign regarding his intention to implement a Muslim ban, even though he later softened those remarks. It also notes Stephen Miller, a senior advisor to the president, told Fox News in February that the new travel ban would have the same effect as the old one.
The move came after a federal judge in Honolulu said earlier Wednesday that Hawaii can move forward with the lawsuit.
U.S. District Judge Derrick Watson granted the state’s request to continue with the case and set a hearing for March 15 — the day before Trump’s order is set to go into effect.
The state will argue that the judge should impose a temporary restraining order preventing the ban from taking effect until the lawsuit has been resolved.
University of Richmond Law School professor Carl Tobias said Hawaii’s complaint seemed in many ways similar to Washington’s successful lawsuit, but whether it would prompt a similar result was tough to say.
He said he expects the judge, an appointee of President Obama who was a longtime prosecutor, to be receptive to “at least some of it.”
Given that the new executive order spells out more of a national security rationale than the old one and allows for some travelers from the six nations to be admitted on a case-by-case basis, it will be harder to show that the new order is intended to discriminate against Muslims, Tobias said.
“The administration’s cleaned it up, but whether they have cleaned it up enough I don’t know,” he said. “It may be harder to convince a judge there’s religious animus here.”
Tobias also said it is good that Hawaii’s lawsuit includes an individual plaintiff, considering that some legal scholars have questioned whether the states themselves have standing to challenge the ban.
KING-TV, Seattle & The Associated Press contributed to this report.