Washington’s Attorney General Bob Ferguson announced he would seek to extend the injunction on the Trump Administration’s initial travel ban to the updated executive order Thursday.
His team is not filing a second lawsuit because they say the revised travel ban, which bars refugees from six Muslim-majority countries from entering the country for 120 days, still has the core issues the initial order contained. The two problems in the first ban are still present in the updated ban, he said at a morning press conference Thursday. First, the ban still bars refugees and two the ban is targeting six countries with predominantly Muslim populations. Therefore, he said, it’s still unconstitutionally targeting people due to their religion and causing harm to the state.
— Erin Fenner (@erinfenner) March 9, 2017
Ferguson said that the new order shows that the court cases successfully pushed the Trump Administration to mitigate elements of the ban, but he said the key features of the ban remain unconstitutional.
“I think it’s fair to say the revised executive order does narrow the scope of who’s impacted by it in adverse ways,” Ferguson said. “That’s been narrowed. But that doesn’t mean it’s cured its constitutional problems.”
The AG’s team is working with universities and colleges to determine the harm the order could have on Washington, he said.
Ferguson said he intends to bring the request to Judge James Robart, who issued the first injunction, Thursday afternoon. The court battle will be different this time. The ban has yet to go into effect, it impacts fewer people and the harm it could have on businesses, institutions and individuals isn’t immediately apparent as it was during the week of the initial ban where travelers were held in customs, sent on flights to other countries or suddenly had their visas revoked. The federal government may also have an easier argument to work with.
In defending the first ban, the federal government argued that the president had legal authority over immigration manners, so could constitutionally issue the order, and also that there was pressing need, for the sake of National Security, to issue the ban in the manner it was issued. The second part of that argument isn’t likely to have a comfy spot in court this go-around. The new ban’s scheduled, and delayed, roll-out could undermine that argument. But, on the court issue of extending the injunction, the federal government could make a simpler argument that the current injunction simply can’t apply to the new order. The Seattle Times reporter Jim Brunner said as much:
Obviously, feds will argue Robart order does not apply to the rewritten ban
— Jim Brunner (@Jim_Brunner) March 9, 2017
After Robart issued the restraining order on the ban, the federal government appealed the case to the Ninth Circuit District Court. But Ferguson’s team won that appeal with unanimous support from the three judges.
Following the Ninth Circuit’s decision Trump sent out this Tweet:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
But, the Trump Administration didn’t seek further appeals and instead dropped the initial order to issue the revised order that was signed Monday.