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Hawaii Sues Over New Travel Ban as Trump Drops Appeal

By Casey C. Sullivan, Esq. on March 08, 2017 | Last updated on March 21, 2019

Hawaii will file the first legal challenge to President Trump's revised travel ban today, according to the state. Hawaii alleges that the new executive order violates due process and establishes an unconstitutional religious preference, claims similar to those that halted Trump's first ban.

The filing comes the same day that Trump's administration withdrew its appeal of a federal court order halting enforcement of the original ban.

Hawaii Takes Up the Fight Against Trump's New EO

The Trump administration issued a new travel ban on Monday, this one designed to better withstand legal challenges such as Hawaii's. The new executive order retains many of the hallmarks of the original, banning immigration and travel from six majority-Muslim nations (Iraq has been dropped from the list) and halting the resettlement of refugees generally. But, unlike the first travel ban, this iteration does not apply to green card and visa holders, nor does it maintain the earlier version's preference for Christian immigrants.

Still, Hawaii claims that the new EO suffers from many of the same legal and Constitutional infirmities of its predecessor. Its complaint, which was included in a separate motion filed yesterday, accuses the government of violating the Establishment Clause by disfavoring Islam. The complaint includes several pages detailing President Trump's statements from the campaign trail, describing his repeated calls for a "Muslim ban."

The ban also violates the Equal Protection Clause, the complaint alleges, because it is "motivated by animus and a desire to discriminate on the basis of religion and/or national origin, nationality, or alienage." It further violates procedural due process guarantees through the deprivation of liberty interests. The complaint also alleges violations of the Immigration and Nationality Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.

Like Washington before it, Hawaii seems to be relying largely on the EO's impact on its foreign students for standing. Those students "contributed over $400 million to Hawaii's economy," the complaint states, and supported 7,590 jobs. International students make up over 40 percent of the doctoral students at the state's universities.

Administration Withdraws Appeal

As Hawaii's new lawsuit was ramping up, the administration's Ninth Circuit appeal began to wind down. On Tuesday, the government moved to voluntarily dismiss its appeal of a district court order enjoining enforcement of the original ban. That order was upheld by a three-judge Ninth Circuit panel last month, when the court ruled that Washington was likely to succeed in its challenge. The government had urged the court to rehear the case en banc, but withdrew its appeal once the new EO was issued.

Washington State Attorney General Bob Ferguson declared victory in response. The move "confirms what I said yesterday," he announced, "The president's original travel ban was unconstitutional."

The administration had originally indicated that it might seek to defend both bans, even after the first was withdrawn, but this move means that the challenges going forward are likely to be limited to the newest EO.

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