President Donald Trump’s executive order on immigration faces a day of reckoning Wednesday, when federal lawsuits in three cities could block the newly revised travel ban from taking effect.
Three judges, including U.S. District Court Judge Derrick Watson in Honolulu, are set to hold hearings on whether to issue an immediate injunction against the new order — which suspends refugee resettlements and temporarily halts the issuance of new visas to citizens of six Muslim-majority countries.
In Seattle, U.S. District Court Judge James Robart, who is presiding over two of the lawsuits, could also move at any time — with or without a hearing — to rule that his temporary restraining order, which blocked key parts of the original travel ban, also applies to the new order.
Here’s what to watch for in the final hours before the travel ban is set to kick in Thursday at 12:01 a.m. EDT:
On March 8, two days after Trump issued the new order, Hawaii became the first state in the country to file for an immediate injunction.
In response, Watson put Hawaii’s lawsuit on an expedited schedule and set oral arguments at 9:30 a.m. Hawaii time Wednesday.
In the lawsuit, Hawaii Attorney General Doug Chin argues that the travel ban will “immediately threaten grave harm” to the state by damaging its tourism industry, disrupting the University of Hawaii’s recruitment of students and faculty members, and preventing state residents — such as co-plaintiff Ismail Elshikh — who have relatives in the banned countries from reuniting.
In a torrent of court filings during the past several days, 13 states and the District of Columbia, as well as civil rights groups and immigrant advocates, sided with Hawaii, arguing that “concrete proprietary injuries” will result unless Watson issues a nationwide injunction.
But it’s still possible that Watson could decide at the last minute to not hold his hearing.
That’s because, six hours before Watson’s hearing, U.S. District Court Judge Theodore Chuang in Greenbelt, Maryland, has scheduled a hearing on a similar lawsuit brought by refugee aid groups.
Meanwhile, Robart could move to clarify the scope of his temporary restraining order anytime before Watson’s hearing. Even if he doesn’t, he’s still scheduled to hold a hearing — after Honololu’s — in his Seattle courtroom at 11 a.m. Hawaii time.
If either of the judges puts the new order on hold nationwide, Watson could decide to suspend Hawaii’s lawsuit — just as he did after Robart issued his injunction against the original travel ban, concluding that the state effectively had “the comprehensive relief it seeks.”
If Watson does hold his hearing, the state will first have to show that it has the legal standing to sue the Trump administration.
In a motion filed Monday, Justice Department lawyers brush aside Hawaii’s claims for standing, saying that the alleged harm to the state is “far too speculative.”
“Hawaii contends that its universities and agencies’ recruitment may suffer, and that Hawaiian businesses … will lose tourism revenue,” the lawyers wrote. “But, as its own declarations show, those fears are pure conjecture.”
The lawyers also argue that the claim of Elshikh, whose mother-in-law in Syria has a pending visa application, is “not yet ripe,” given that the travel ban has “robust waiver provisions” that can grant case-by-case exemptions — if “denying entry during the suspension period would cause undue hardship.”
“Therefore, plaintiffs cannot show that any individual whom they seek to protect is in imminent risk of being denied entry due to the order,” the lawyers wrote.
But, in a motion filed Tuesday, Neal Katyal, a lead attorney on the lawsuit, dismisses the Trump administration’s arguments as “a bevy of legal theories on which Supreme Court and appellate precedent … squarely slam the door.”
Katyal points out that the 9th U.S. Circuit Court of Appeals, which upheld Robart’s injunction against the original travel ban, has already rejected the Trump administration’s arguments about “speculative” and “unripe” standing.
“Some (of the Trump administration’s claims) may sound plausible, but all fall apart to the touch,” Katyal wrote.
To get a temporary restraining order, the state will also have to show that its central argument — that the new order discriminates based on religion and national origin — is “likely to succeed on the merits.”
In the state’s amended complaint, Katyal goes on at length, using past statements by Trump and his aides, to flesh out one of the key allegations: that the travel ban is a thinly veiled “Muslim ban” in violation of the First Amendment’s establishment clause.
In Monday’s motion, the Justice Department lawyers insisted that the new order stemmed only out of national security concerns.
To bolster their arguments, the lawyers included a two-page letter that Homeland Security Secretary John Kelly and Attorney General Jeff Sessions delivered to Trump last week. It reads, in part:
We believe that it is imperative that we have a temporary pause on the entry of nationals from certain countries to allow this review to take place — a temporary pause that will immediately diminish the risk we face from application of our current vetting and screening programs for individuals seeking entry to the United States.
In Tuesday’s motion, Katyal rebuts the Trump administration’s arguments point by point.
First, Katyal calls attention to the fact that the joint letter by Kelly and Sessions was dated March 6 — the same day the new order was unveiled.
The letter “purports to propose the policy embodied in the order, as if it is a new idea sprung straight from the heads of the cabinet officers,” Katyal wrote. “It’s hard to imagine clearer evidence of pretext.”
Next, Katyal takes on the argument that the travel ban “cannot suggest religious animus” since it’s applicable to only a “fraction of Muslim-majority nations worldwide.”
“By that logic,” Katyal wrote, “the president could repeatedly express a desire to ban Jews, enact a policy barring immigration from Israel and then defend it by pointing out that there are many Jews residing elsewhere.”
And Katyal points out that the use of past statements by Trump and his aides was deemed fair game by the 9th Circuit when assessing Trump’s original travel ban — even though the Trump administration still insists otherwise.
“In the end, much ink has been spilled, but the situation is simple: The court is faced with an order that — in the words of the president and his advisers — ‘has the same basic policy outcome’ as the original order and was tweaked to ‘avoid litigation,'” Katyal wrote. “That original order was a travesty. … The court should enjoin this version too.”
You can read Hawaii’s motion filed on Tuesday here:
You can read an amicus brief filed by 13 states and the District of Columbia here: