President Donald Trump’s new executive order prohibiting travel to the United States for nationals of six Muslim-majority countries is facing its first court challenge, though it almost certainly won’t be the last.
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Late on Tuesday, Douglas Chin, the attorney general of Hawaii, filed an amended complaint in the state's lawsuit against the first iteration of the travel ban so that it could challenge the legality of version No. 2.
“This second executive order is infected with the same legal problems as the first order -- undermining bedrock constitutional and statutory guarantees,” the court filing states.
The state also signaled its intention to seek a temporary restraining order to prevent the new order from going into effect next week.
President Trump’s revamped executive order is resulting in “immediate damage” to Hawaii’s economy and educational institutions, the state alleges, “and it is subjecting a portion of the state’s citizens to second-class treatment and discrimination, while denying all Hawaii residents the benefits of an inclusive and pluralistic society,” according to the court filing.
On Monday, President Trump signed a substantially revised version of the executive order “Protecting the Nation from Foreign Terrorist Entry into the United States.”
The new edition comes just over a month after a federal judge in Seattle issued a nationwide injunction prohibiting enforcement of the original travel ban. The 9th Circuit Court of Appeals later rejected the Trump administration’s attempt to reinstate it.
The White House overhauled the executive order in an effort to address issues raised in the courts.
The new order explicitly exempts legal permanent residents of the U.S. and current visa holders, and it cuts the number of affected countries from seven to six, leaving out Iraq.
Though President Trump has repeatedly stressed the urgency of getting the policy in place, the new order is getting a delayed rollout. It is scheduled to go into effect March 16.
Legal experts are divided on whether the new executive order will ultimately pass constitutional muster, pointing out that we are still in uncharted waters.
“This does follow the road map that the 9th Circuit gave to the government and even goes above and beyond it in a way that is very good,” said Peter Margulies, professor of law at Roger Williams University Law School.
But other experts said the new order remains “tainted” by Trump’s campaign statements calling for a “Muslim ban” and other indications that it has a discriminatory intent and impact.
“The odds are long against the plaintiffs ultimately prevailing, but not impossible,” said David Martin of the University of Virginia Law School.
Even with the changes to the order, the state of Hawaii argues that the new directive violates the law because it fails to offer a satisfactory explanation for why certain countries were included or excluded from the order. The state also asserts the new order infringes on due process and establishment clause protections of the constitution.
“The statements of President Trump and his advisers also provide direct evidence of the executive order’s discriminatory motivations,” the amended complaint states.
On Wednesday, Judge Derrick Kahala Watson, who is overseeing the case and was appointed by President Barack Obama in 2013, ordered the state to file its application for a restraining order by today and said he will give the Trump administration until Monday to oppose it. A hearing is set for March 15.
Attorneys general in New York, Washington, Massachusetts and Virginia indicated this week that they are reviewing the new order and expect to also take legal action. The American Civil Liberties Union, which has joined lawsuits around the country challenging the first travel ban, told ABC News “we will definitely challenge the second executive order, but it’s still a matter of where.”