In the final hours before President Trump’s revised executive order on travel and refugees was set to take effect, attorneys sparred over whether the order’s intention was to discriminate against Muslims as they sought to persuade federal judges in three different states to block it from taking effect.
A ruling in at least one of the cases is expected before the order goes into effect at 12:01 a.m. Thursday. After hearing arguments Wednesday, Hawaii-based U.S. District Judge Derrick Watson said he intends to rule before the deadline though he gave no clear indication of whether he might block the order.
Hawaii Attorney General Douglas Chin alleged in his lawsuit that the state’s residents, universities, businesses, health care systems and religious organizations will be harmed by the revised order. Attorney Colleen Roh Sinzdak explained in court Wednesday how resident Ismail Elshikh, the imam of the Muslim Association of Hawaii, worries that his mother-in-law, a Syrian national, would be barred from coming to the United States under the travel ban. She said Mr. Elshikh has standing to challenge the ban and that because of the order, all Muslim residents in Hawaii face higher hurdles in reuniting with family members because of their faith.
Acting Solicitor General Jeffrey Wall argued by phone that Hawaii has made speculative arguments and has not identified actual harms to residents.
Under the new order, citizens of six Muslim-majority countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — will be banned from obtaining visas to come to the United States for 90 days. Iraq was dropped from the original list of banned countries. The new version still will halt for 120 days all refugee resettlement, though it removed the original order’s permanent ban on refugees from Syria and exemptions for religious minorities, namely Christians. It also lowers the number of refugees accepted by the U.S. this year from 110,000 people to 50,000 people.
While the ban is in effect, the Trump administration has pledged to develop an extreme vetting program for all foreign visitors to the U.S., including a biometric entry/exit system to identify who is arriving to and departing from the country.
Earlier in the day, a Maryland-based federal judge hearing arguments in another lawsuit challenging the order questioned if he should take into account the president’s prior comments about a Muslim ban and whether any future travel restrictions made by the administration would face similar legal challenges because of the president’s statements.
U.S. District Judge Theodore D. Chuang declined to issue a ruling from the bench after hearing arguments from the American Civil Liberties Union, which believes the president’s travel ban will have a discriminatory and stigmatizing impact on Muslims.
Judge Chuang said he hoped to issue a written ruling by the end of the day but made no promises that an order would be issued before the travel ban goes into effect.
Mr. Wall, who appeared in person in the Maryland case, argued that plaintiffs could not prove they have standing to challenge the order, and that even if the judge were to agree that they could, they had not met the burden to show they “are facing some irreparable harm over the next few weeks” if the order is allowed to take effect.
Omar Jadwat, a senior staff attorney with the ACLU Immigrants’ Rights Project, argued that Mr. Trump’s statements as a candidate showed the true purpose of the executive order: to disfavor Muslims.
“A discriminatory process itself inflicts the injury,” Mr. Jadwat said, drawing the parallel that if a law blocked black families from moving into a particular neighborhood that they would not be told to wait until they were denied the right to move before they could challenge the law.
The discriminatory intent of Mr. Trump’s second order remains the same, despite the fact the administration was sent back to the drawing board to revise its original executive order after a federal court issued an injunction blocking its implementation, Mr. Jadwat said.
When asked whether Mr. Trump’s comments about seeking to implement a Muslim ban, made when he was running for office, should be taken into consideration in regard to the purpose of the order and whether it is discriminatory, Mr. Wall said there is a distinction between comments made about intent before Mr. Trump was sworn into office. The statements were made before he was sworn into office and before he discussed legal aspects of the executive order with Cabinet members, Mr. Wall said.
It “would be a harder case” if Mr. Trump had made those same statements as the president of the United States, the acting solicitor general said.
Justice Department lawyers defended the president’s authority to restrict foreign nationals’ travel to the United States during the hearing, saying the revised order addressed previously raised legal concerns by narrowing its scope and affording individuals who might be denied visas a waiver process.
Mr. Wall said the six countries from which visa applications would be restricted under Mr. Trump’s order were already identified by the Obama administration to be removed from the visa waiver program. He said the Trump administration took those groups “and said we are making different judgement on the amount of risk we are willing to tolerate.”
In Seattle, U.S. District Judge James Robart opened a the day’s third hearing on the travel ban by questioning a lawyer for the Northwest Immigrant Rights Project about two seemingly conflicting federal laws on immigration.
One gives the president the authority to keep any class of aliens out of the country, and another forbids the government from discriminating on the basis of nationality when it comes to issuing visas.
Attorney Matt Adams responded that while the law does give the president broad authority, Congress later clarified the law to say the government can’t discriminate on the basis of nationality any more than it could bar people based on their race.
It was unclear whether any the three cases in which there were hearings Wednesday would result in a ruling that blocked nationwide enforcement of the order. Also pending was a request from the Washington state attorney general in which he asked U.S. District Judge James Robart to extend his Feb. 3 injunction against the original travel ban to prevent a revised version from taking effect.
• This article is based in part on wire services reports.
• Andrea Noble can be reached at anoble@washingtontimes.com.
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