Trump’s new executive order, signed on Monday, bars new visas for people from six Muslim-majority countries and replaces an initial order issued on 27 January, which was chaotically rolled out and subsequently halted by a federal court following a barrage of legal challenges from states and advocate groups across the country.
The new order sought to alleviate some of these complaints by offering exemptions to lawful permanent US residents and current visa holders from the six countries – Yemen, Somalia, Sudan, Iran, Syria and Libya – as well as staggering the timeframe of implementation.
But the state of Hawaii argues in an amended complaint that the new order remains incompatible with freedom of religion protections in both the state and federal constitutions, will harm the state’s economy and educational institutions, and would prevent Hawaiians with family members in the six targeted countries from reuniting.
“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 disfavours one religion and violates the establishment clauses of both the federal and state constitutions,” the complaint states.
On Wednesday, Judge Derrick Watson granted the state permission to refile the amended motion for a new restraining order on Trump’s second ban.
The government has been instructed to file a response to the motion by 13 March, with a date in court set for 15 March at 9.30 am Hawaiian time, just hours before the second executive order will come into full force.
Imam Ismail Elshikh of the Muslim Association of Hawaii, a plaintiff in the state’s challenge, says the ban will keep his Syrian mother-in-law from visiting. “The family is devastated,” the filing said.
It remains unclear whether other states that challenged Trump’s first ban will follow Hawaii’s lead. The Washington state attorney general, Bob Ferguson, said on Monday he was “carefully reviewing” the new order. As of Wednesday morning, Ferguson had filed no new motions in the case.
The New York state attorney general, Eric Schneiderman, also said on Monday he was “closely reviewing the new order” but has yet to announce any further action.
Carl Tobias, a professor at the University of Richmond Law School, 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 expected the judge, an appointee of Barack 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 travellers from the six countire 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 was good that Hawaii’s lawsuit included an individual plaintiff, considering that some legal scholars have questioned whether the states themselves have standing to challenge the ban.
/Guardian/
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