States go after White House’s revised immigration ban in federal court

People protest against President Donald Trump's revised travel ban outside the U.S. Customs and Border Protection office in Washington, D.C., on Tuesday. Five states -- Washington, Oregon, Minnesota, New York and Massachusetts -- are challenging the new order in federal court, saying it still violates the same constitutional principles as the previous measure. Photo by Erin Schaff/UPI | License Photo

March 10 (UPI) — Three days after President Donald Trump replaced his controversial immigration ban with a new order, a handful of states went back to federal court Thursday to have it blocked, too.

Five states — Washington, Minnesota, Oregon, New York and Massachusetts — are asking the U.S. Court of Appeals for the Ninth Circuit in Seattle to issue an injunction against the measure. Washington and Minnesota were also the plaintiffs in a lawsuit that ultimately blocked Executive Order 13769, the administration’s first attempt at closing U.S. borders to all refugees and immigrants from seven largely Muslim nations.

On Thursday, Washington Attorney General Robert W. Ferguson said the new suit asks Judge James L. Robart to once again block the revised order’s implementation — saying the presidential action may differ in language but violates the same constitutional principles.

“The president cannot unilaterally declare himself free of the court’s restraining order and injunction,” he said at news conference Thursday. “This is not a new lawsuit. … It’s our view that [the first] temporary restraining order that we’ve already obtained remains in effect. And the burden is on the federal government to explain why it does not.”

“A lot of people who the 9th Circuit said are covered by this injunction are still harmed by the new executive order,” Washington Solicitor General Noah Purcell said.

Trump’s replacement order, signed Monday, was designed to stand up to legal scrutiny better than the first had. Like the prior order, though, it temporarily bars all foreign refugees and a select group of migrants from entering the United States — but differs by exempting current visa holders and Iraqi migrants.

Iraq was originally named with Iran, Syria, Libya, Yemen, Somalia and Sudan in the first order as countries that were barred for 90 days from sending immigrants to the United States. All refugees were barred for 120 days, except those from Syria, who were prohibited “indefinitely.”

The Justice Department said in court filings that the new order also addresses due process concerns with “a robust waiver provision” to permit exceptions on a case-by-case basis for immigrants from the six nations on the banned list. Further, it removes the “indefinite” tag on Syrian refugees and limits the potential number of all refugees admitted to the United States this year to 50,000.

“That does not mean that it’s cured its constitutional problems,” Ferguson said of the revisions.

Trump and his administration have repeatedly said the order is a national security measure to suspend U.S. entry until the government can better assess and implement its immigration policy.

On his Twitter page, the president was severely critical of the legal efforts to stop his first order — even rebuking Robart and three judges in a San Francisco appellate court who declared the so-called immigration travel ban unconstitutional.

“You can’t tweet your way out of the rule of law,” Ferguson said.

Washington and Minnesota were joined in their suit by Oregon, New York and Massachusetts on Thursday, and Ferguson said he welcomes any additional states that also want to step in.

“It’s my duty, my responsibility to act,” Ferguson said. “We’re not going to be bullied by threats and actions by the federal government.”

Critics of the orders have argued they merely allow Trump to make good on campaign remarks for a blanket Muslim ban. Then-candidate Trump later walked back his comments, but opponents say his travel ban is rooted in that campaign pledge.

“Trump’s latest executive order is a Muslim Ban by another name, imposing policies and protocols that once again violate the Equal Protection Clause and Establishment Clause of the United State Constitution,” New York Attorney General Eric Schneiderman said in a statement. “Smart, aggressive litigation by state attorneys general and civil rights advocates across the country successfully torpedoed President Trump’s first Muslim Ban, and I am pleased that as state AGs, we are now marshaling our resources to fight Trump’s latest, unconstitutional decree.”

“We are consolidating our efforts and joining fellow states, led by [Ferguson], to challenge Trump’s unlawful Muslim Ban 2,” Massachusetts Attorney General Maura Healey tweeted. “Trump’s second travel ban remains a discriminatory, unconstitutional attempt to make good on his campaign promise.”

Also this week, Hawaii filed its own lawsuit to block the order. A judge in Honolulu will hear arguments on Wednesday, just hours before the measure is set to take effect.

The White House has said it is confident that the new order will pass legal muster.

“We feel confident in how that was crafted and the input that was given,” spokesman Sean Spicer said at his daily news briefing Thursday.

Purcell, though, said Trump’s government itself has even gone so far to say both orders are effectively identical.

“We are pointing to the fact that the president’s senior advisers have been saying that this is the same basic policy as the order that was enjoined,” he said. “That’s a relevant piece of information for the judge to consider when deciding whether to allow the government to implement this revised order.”

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