Hawaii notified the U.S. Supreme Court on Thursday that it intends to challenge President Donald Trump’s new travel ban.
In a letter to the high court, Hawaii Attorney General Doug Chin told the justices that the state will file a motion Friday in U.S. District Court in Honolulu to amend the complaint in the ongoing Hawaii v. Trump lawsuit to include its arguments against the third version of the travel ban, which is set to take effect Oct. 18.
“Hawaii fought the first and second travel bans because they were illegal and unconstitutional efforts to implement the president’s Muslim ban. Unfortunately, the third travel ban is more of the same,” Chin said in a statement.
“This new ban still discriminates on the basis of nationality, it still exceeds the president’s legal authority and it still seeks to implement his Muslim ban. Simply adding an obvious target like North Korea to the list and banning travel by some government officials from Venezuela does nothing to disguise this,” Chin said. “And — unlike the first two versions — Travel Ban 3.0 has no end date.”
In separate letters, Hawaii and the American Civil Liberties Union also urged the justices not to dismiss the lawsuits against the earlier version of the travel ban, arguing that the anti-Muslim bias remains in the new one.
U.S. Solicitor General Noel Francisco countered in his letter to the justices that they should find the lawsuits to be moot, now that the older travel ban has expired.
It’s not clear when the court will decide what to do with the lawsuits.
Last month, the justices canceled an oral argument that was set for next week and asked both parties to weigh in on whether they should sidestep, at least for now, ruling on the legality of the older travel ban — which halted the issuance of new visas to citizens of six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.
The cancellation came shortly after the Trump administration announced the new travel ban, which it said was based on an objective assessment of each country’s security situation and willingness to share information with the U.S.
The new travel ban takes Sudan off the list of the banned countries and adds Chad and North Korea, in addition to placing restrictions against several government officials from Venezuela.
Critics have described the changes as window dressing that leave in place the heart of what they call a Muslim ban; already, immigrant advocacy and civil rights groups have challenged the new travel ban.
In his letter, Francisco told the justices that there’s no sense in holding arguments or issuing a decision about policies no longer in effect.
But Neal Katyal, a lead attorney for Hawaii, cited a 2000 precedent to counter Francisco’s argument, saying the case isn’t moot “unless and until the government makes it ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'”
“The parties retain a live dispute regarding the legality” of the travel ban, Katyal wrote. “Accordingly, this court should once again set the case for argument and adjudicate the legality of the president’s ongoing effort to usurp Congress’ power over immigration and unilaterally ban hundreds of millions of foreign nationals — the overwhelming majority of them Muslim — from the United States.”
The two parties also disagreed about what the justices should do if they decide not to hear the case.
Francisco urged the justices to throw out lower court rulings against the older travel ban. Otherwise, it said, critics will try to use the rulings to bolster their challenges to the new one.
“If allowed to stand, the lower courts’ decisions threaten to undermine the executive’s ability to deal with sensitive foreign-policy issues in strategically important regions of the world,” Francisco wrote.
But Katyal argued for leaving in place the lower courts’ rulings. The administration has controlled most of the timing issues to this point, and the court should not reward it by throwing out the unfavorable rulings, he said.
“It would be profoundly inequitable to permit the government to use these maneuvers to obtain the very relief it sought on the merits: vacatur of the injunctions,” Katyal wrote.
The Associated Press contributed to this report.
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