Washington State Wants Judge's Restraining Order Applied To Trump's New Travel Ban

Mar 9, 2017
Originally published on March 14, 2017 8:06 pm

Updated at 4:06 p.m. ET

Washington state is asking a federal judge to apply the restraining order that temporarily halted President Trump's initial travel ban to the revised ban he signed Monday.

In an announcement Thursday, Washington state Attorney General Bob Ferguson contended that Judge James Robart's Feb. 3 ruling — which suspended Trump's first ban nationwide until a challenge brought by Washington and Minnesota could be heard in court — ought to cover the second ban, despite revisions that narrowed who would be affected. The new ban is currently slated to go into effect on March 16.

Attorneys general for New York, Massachusetts and Oregon also declared their intention Thursday to formally join Washington and Minnesota's legal challenge to the ban.

"The bottom line is that the court issued, and we obtained, a temporary restraining order on the original executive order," Ferguson told NPR's Robert Siegel ahead of the announcement. "Yes, the revised one is more narrow — that's a success. But the core constitutional problems remain the same."

Ferguson added: "The intent behind the executive order targeting those Muslim countries still remains, and that is unconstitutional."

The original executive order, issued in January, temporarily barred citizens from seven Muslim-majority countries — as well as all refugees — from entering the United States. Many of the ban's critics, including Ferguson, argued that it violated the Constitution by specifically targeting immigrants of a single faith.

The revised executive order adopted a narrower scope in a bid to soften some of its more controversial parts. It dropped Iraq from the list of banned countries — while keeping Syria, Libya, Somalia, Iran, Yemen and Sudan on there — and clarified that those legal residents who already have visas can still come to the U.S.

But Ferguson is not convinced the changes are substantial enough to resolve their earlier complaints.

"Is it a narrower group of people who are impacted by the travel ban, the revised one? You bet," Ferguson told NPR. "But just because it's a smaller number of individuals who are impacted, that doesn't mean you can solve a constitutional problem of the magnitude that the revised ban still has."

In a statement released Thursday, Massachusetts Attorney General Maura Healey echoed Ferguson's concerns:

"President Trump's second travel ban remains a discriminatory and unconstitutional attempt to make good on his campaign promise to implement a Muslim ban. We are consolidating our legal efforts and joining fellow states, led by Washington, in continuing to challenge this Administration's unlawful immigration policies."

And so the beating heart of Washington's challenge remains the same.

"The test is whether or not a motivating factor behind the travel ban was an improper religious bias against Muslims," Ferguson said. "That doesn't mean in some other context with immigration, he doesn't have broad powers. He does.

"But for this particular travel ban, he's going to run into this problem over and over again."

Washington's request is separate from the new lawsuit that the state of Hawaii filed Wednesday against Trump's new executive order.

Yet as NPR's Laurel Wamsley noted, the lawsuit also argues that despite the change in language, the new executive order "is infected with the same legal problems as the first Order — undermining bedrock constitutional and statutory guarantees."

For more about Trump's executive orders on immigration, read the rest of our coverage here.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

AUDIE CORNISH, HOST:

The legal challenges to President Trump's revised travel ban have begun to roll in. The executive order will temporarily suspend travel to the U.S. from six Muslim majority countries starting in one week. It will not apply to people who already have valid visas or green cards.

ROBERT SIEGEL, HOST:

This week Hawaii became the first state to take legal action against the revised ban. And now Washington state is weighing in. That state's attorney general, Bob Ferguson, filed the lawsuit that led to the restraining order on the original ban. Now he says despite the changes, the revised ban still fails to pass constitutional muster.

BOB FERGUSON: Yes, the revised one is more narrow. That's a success. But the core constitutional problems remain the same. So what we're going to be asserting is that the court's temporary restraining order from the original one still applies to the current executive order.

SIEGEL: But there are some differences. You argued that state universities had foreign students who were stranded. Big employers couldn't get their employees into Washington state. If people who in fact have visas to come and study or work there - if they are not affected by the second travel ban, does that diminish the state of Washington's standing to sue on their behalf in court? Are you lacking people who've been harmed by it at that point?

FERGUSON: No. We've been in communication with colleges and universities and businesses here in Washington state. So we're confident that we'll be successful in asserting standing. In other words, we have a dog in the fight, so to speak. Is it a narrow group of people who are impacted by the travel ban, the revised one - you bet. But that doesn't mean you can solve a constitutional problem of the magnitude that the revised ban still has.

At the end of the day, Robert, during the campaign, President Trump made it clear he wanted a Muslim ban. Advisers like Rudy Giuliani said, hey, President Trump wants me to create a legal Muslim ban. The intent behind the executive order targeting those Muslim countries still remains, and that is unconstitutional.

SIEGEL: Well, if former Mayor Giuliani wasn't involved in drafting the new executive order, are his comments then no longer relevant to this entire discussion? Wouldn't you have to find the person who was involved in writing this one instead?

FERGUSON: Yeah, and that's an important point because part of what we're doing is - when we get back before Judge Robart, our trial court judge here in Seattle - is we want to go through a discovery process. Once this temporary restraining order remains in place, we can ask for depositions with key adviser, ask for emails and other documents to get behind the intent of this executive order. We're entitled to information, and we'll certainly be seeking it.

SIEGEL: I just want to get your sense of this. Is there anything that President Trump can do in your view to, let's say, wash his hands of the early campaign proposal to ban Muslim entry into the U.S.? That is, is everything he does regarding to travel and immigration from here on in stained by that remark and therefore it should be overthrown as a violation of freedom of religion?

FERGUSON: The test is whether or not a motivating factor behind the travel ban was an improper religious bias against Muslims. As long as that is the case, Robert, then yes, anything he tries to do around travel bans would be constitutionally difficult for him to achieve. That's the test, and that's what we're seeking. That doesn't mean in some other context with immigration he doesn't have broad powers. He does. But for this particular travel ban, he's going to run into this problem over and over again.

SIEGEL: Does the fact that the second order provides for waivers that the State Department or the Homeland Security Department could offer on a case-by-case basis - does that soften any of your concerns that a blanket ban could see no shades of virtue to various people's applications to travel here?

FERGUSON: I'm sure that's something that the Department of Justice will argue before Judge Robart - is having those types of exemptions softens it. We're not convinced by that. We think the criteria for getting those waivers, those hurdles are almost insurmountable for individuals. And so it's not just the words on a piece of paper, Robert. It's the intent behind it that we're going after. And you can have the four corners of a document read just fine, but the motivation behind it is in this case a Muslim ban. That's a constitutional problem that will not be able to be overcome by the Department of Justice or by the president.

SIEGEL: But I - to return to this question of whether the Muslim ban will ever stop reverberating through Trump administration policy, what would have to be in an order or what would have to be absent from an order for you to say, well, this doesn't reflect the thinking of candidate Trump?

FERGUSON: Well, it depends what he does. The president has broad powers when it comes to immigration policies generally, right? So if there's something in a different context, he's got those broad powers. We examine those on their own. But in this particular case with this group of six or seven countries, the motivation behind this particular travel ban, you simply can't put lipstick on a pig and repackage it and think you can get around constitutional problems. The history is the history when it comes to this. And, well, look; we haven't even gotten to discovery yet or depositions. We think when we can get that evidence, our case will be even stronger.

SIEGEL: Attorney General Bob Ferguson of the state of Washington, thanks for talking with us today.

FERGUSON: Thank you, Robert - really appreciate it. Transcript provided by NPR, Copyright NPR.