With Hawaii going first, followed by Washington, state attorneys general launched law suits this week to block implementation of the Trump administration's revised travel ban.
The new executive order signed by President Donald J. Trump on Monday is "nothing more than Muslim Ban 2.0," said Doug Chin, Hawaii's attorney general, in a news release.
Trump's original order issued January 26 targeted seven majority-Muslim countries. The new order aims at six, removing Iraq from the list of proscribed nations. Chin and other critics argued the differences are insignificant and that the federal courts should block the order just as they did the first.
"Under the pretense of national security, it still targets immigrants and refugees," Chin said, and he worried that the order also "leaves the door open for even further restrictions."
Chin filed a suit in the U.S. District Court in Honolulu challenging the constitutionality of the executive order and is seeking court action to block its implementation.
"We all want safety and security in our state," Chin said in a news release yesterday. "But discrimination against people based on national origin or religion is a very dark path we must never accept. Respectfully, the new order fails to fix the initial defect…Nothing of substance has changed."
That defect, according to Chin's office, remains embedded in the order's language. Although it now exempts visa-holders and approved refugees, lifts the indefinite ban on those refugees from Syria and drops language about prioritizing Christian refugees, Chin and other critics insist the revised order is as unconstitutional as the one it replaced.
Sam Erman, Associate Professor of Law at USC Gould School of Law who specializes in Constitutional law and judicial review, said this new iteration of the ban was crafted to try to avoid some of the blatant legal difficulties that arose last time – particularly regarding visa holders, like international students. With that part of the ban clarified, there's a new legal focus.
"What continues to be the case is opponents of the ban charge that it's motivated by anti-Muslim bias," Erman said. "And that it violates a statutory rule that you're not allowed to target people because of their nation of origin."
That claim, Erman said, rests on the order's potential violation of the immigration and Nationality Act of 1965, which abolished an old national-origins quota system for immigration.
"The question there is primarily one of statutory interpretation," Erman said. "There are statutory provisions that allow the president to bar people from entry for various reasons – the question is, does this one saying that you can't do things based on national origin override the other statutes that say the president has discretion?"
That is, it's unclear which law is primary here – the one that gives the president discretion, or the one that bans discrimination. And this confusion, linked with the second question about the establishment of religion, is what we'll soon see play out in federal courts.
"If it's true that the government is targeting migrants from these countries because they're Muslim, that would raise a serious establishment clause problem," Erman said, referring to the Constitution's prohibition on government interference with freedom of religion. "What we're running into here is a very serious First Amendment-type concern – the court cares a lot about religion, and a tradition of giving the executive a lot of deference."
The interaction between the questions could, according to Erman, prevent quick resolution. But it won't prevent more and more states from cropping up with the same complaints as Hawaii, who'd had a pending lawsuit following the first executive order, and Washington.
"Hawaii has a democratic attorney general," Erman said. "This is a partisan issue as well as a legal issue and democratic attorney generals at the state level around the country are bringing lawsuits. This is definitely a case that's going to be productive of legal change and legal controversy for quite a while."
And similarly, it's also been considered a dramatic social issue. In an interview with local news affiliate KHON2 in Hawaii, Chin said the ban was particularly sensitive to Hawaiians because of its parallels to Japanese internment on the island during World War II, and that the ban comes in conflict with the political culture of Hawaii.
Brianne Tabois, USC student and native Hawaiian, was not surprised Hawaii was the first state to file a suit.
"There's this weariness of the population against the feeling of takeover," Tabois said. "To our people, we're trying to protect ourselves and our own. Hawaii really is the melting pot of the U.S., and with people of such diverse backgrounds, the travel ban feels like an attack."
Tabois said political culture in Hawaii focuses on a resistance from outside influence – particularly the influence of "haoles," or white people, specifically in positions of power – that culminates in a type of thinking called "Defend Hawaii."
"Since the ban can affect our own people and families, this is their move of resistance," Tabois said.
In a press briefing this week, White House Press Secretary Sean Spicer focused on the new order's rollout as a sign of future success: "When I think you look at this rollout, of how well this was done, it was done extremely effectively," Spicer said. "There's a 10-day window to ensure it goes into effect March 16 so that, down-government agencies and employers have the opportunity to make sure that they know what is expected of them and how to implement them effectively."