WASHINGTON — At 12:01 a.m. Thursday, President Trump’s new refugee and travel executive order is due to go into effect. But before that happens, Trump’s lawyers at the Justice Department will have to make their way through several hurdles: court challenges across the nation.
The first executive order, signed on Jan. 27, happened with no warning, went into effect immediately, and led to chaos at airports across the country. The new executive order, signed March 6, is not yet in effect, leading to less chaos — but also to a more organized effort to get the executive order in front of judges before it takes effect.
Judges in two federal courts already have set hearings for Wednesday on whether to halt enforcement of the new executive order before it goes into effect, with a third likely to be asked to take similar action before Thursday. A fourth federal judge has already issued a narrow temporary restraining order, which halted enforcement of the new executive order against three specific individuals. There also remain the possibilities of further developments in other pending challenges to the first executive order or new cases being filed against the new executive order.
The new order is significantly different from the original order, a point expected to be highlighted by the federal government in its defense of Executive Order 13,780. The new order made clear that lawful permanent residents and current visa holders were not subject to the 90-day travel ban provision. It also removed Iraq from the list of countries included — leaving Iran, Libya, Somalia, Sudan, Syria, and Yemen. In the refugee ban provision, the main element — a halt of the refugee program for 120 days — stayed the same, but two provisions that had caused trouble originally were removed: the indefinite halting of the Syrian refugee program and the minority-religion preference to be given once the refugee program restarted.
The second argument expected to be pressed by Justice Department lawyers in advance of the new executive order is highlighting the importance of the waiver provisions, which they maintain are more expansive than in the original order. These provide protection for individuals presenting specific cases that might have caused trouble for the administration under the first order.
The arguments against the new order basically are expected to fall into two camps. The first is that the main provisions of the order — the 90-day travel ban and 120-day halt to the refugee program — haven’t changed aside from some alterations around the edges. There were waiver provisions in the first order, the opponents of both orders note, and laying out more detailed waiver possibilities doesn’t change the way the substance of the order should be viewed.
The second argument is, more or less, that the administration’s first executive order — and Trump’s campaign before that — already poisoned the well. If the first comments were that Trump promised to implement a “Muslim ban,” and the first order was seen by some courts as a watered-down version of that ban, there is no reason why the ill intent of the original campaign promise disappears in any later iteration of that promise.
Those arguments will now be presented in multiple courts in multiple time zones in the 24 hours before the new order is due to go into effect, setting up what is likely to be a complicated, and long, day on Wednesday — especially if lower court orders get appealed immediately.
The hectic upcoming week comes a little more than a month into Attorney General Jeff Sessions’ tenure at the head of the Justice Department. Sessions, who is running the department currently with no senior staff yet confirmed by the Senate, also now is dealing with the fallout from Friday’s ordered resignations of nearly half of the US attorneys across the country.
Cases to watch
The first Wednesday hearing, taking place in Maryland at 9:30 a.m., was ordered by US District Judge Theodore Chuang, in a case brought by two nonprofit refugee organizations, as well as individuals affected by the order. The International Refugee Assistance Project and HIAS, Inc., are going broad, asking for an order “enjoining Executive Order 13780 in its entirety.” Among those representing the plaintiffs in the case are lawyers from the national ACLU, the ACLU of Maryland, and the National Immigration Law Center.
The second Wednesday hearing, taking place in Hawaii at 9:30 local time (3:30 p.m. Eastern Time), was ordered by US District Judge Derrick Watson, in a case brought by Hawaii and an individual affected by the order. Hawaii Attorney General Doug Chin has brought in the Hogan Lovells law firm, including former US Acting Solicitor General Neal Katyal, to help represent the state. Slightly more limited than the litigation taking place in Maryland, Hawaii is seeking a temporary restraining order halting enforcement of sections 2 and 6 of the new executive order — the travel and refugee provisions.
Meanwhile, in the case that halted enforcement of the first executive order, Washington v. Trump, US District Judge James Robart “decline[d] to resolve the apparent dispute between the parties” over whether the prior injunction also applies to the new executive order until an amended complaint is filed that addresses the new executive order. Given that Washington Attorney General Bob Ferguson said an amended complaint will be coming soon — and given Washington’s aggressiveness in this case — it would be expected that Ferguson’s office, along with the other states expected to be joining his litigation, will be making a move early this coming week. (Those states are expected to include Minnesota, Oregon, New York, Massachusetts, and Maryland.)
A first loss for the new order
Notably, the new travel has already order racked up its first — if temporary — court loss, in a brief order from US District Judge William Conley in the Western District of Wisconsin.
John Doe, a man who was granted asylum in the US due to his credible fear of persecution if he were to be returned to Syria, is seeking to bring his wife and daughter to the US under a similar asylum claim but fears they will not be able to travel to the US under the executive order.
Conley, in a Friday order, concluded that Doe “presented some likelihood of success on the merits” of the lawsuit. “Moreover, given the daily threat to the lives of plaintiff’s wife and child remaining in Aleppo, Syria, the court further finds a significant risk of irreparable harm,” he wrote, prohibiting the federal government from enforcing the new executive order against Doe, his wife, or his daughter.
Conley’s decision is only a temporary restraining order, however, and further briefing on Doe’s request for a preliminary injunction is set to take place over the next 10 days, with a hearing set for 3 p.m. March 21.
Other existing cases
In addition to the four cases previously discussed, there also remain questions about what actions Virginia Attorney General Mark Herring will take in the litigation where his office obtained a preliminary injunction against parts of the first executive order. His office announced on March 6 that he would be reviewing the new order — the day Trump issued it — but Herring’s office has taken no further action since.
Additionally, the Arab American Civil Rights League and others who brought litigation in Michigan filed a notice on March 6 that they would be filing an amended complaint in their lawsuit to address the new order.
Finally, the PARS Equality Center and others who brought litigation in DC will be submitting an amended complaint on Tuesday, according to a joint status report filed on Friday, but the remainder of the agreed-upon timeline for the case pushes any ruling in the case off until April.
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