New Immigration Order as ‘Unconstitutional’ as the First, Says Washington State
President Donald Trump’s second immigration executive order (see 1703060043) keeps “key provisions” from the first that the courts previously “enjoined” as being unlawful, so the second order should be barred from taking effect March 16 as the administration wants it to, the state of Washington argued Thursday in court documents (in Pacer).
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Though the terms in the second order “differ slightly from their original incarnations, the differences do not remove them from the ambit of this Court’s injunction,” the state told U.S. District Court in Seattle, which granted Washington and Minnesota a temporary restraining order (TRO) Feb. 3 that prevented the first order from being enforced. The 9th U.S. Circuit Court of Appeals in San Francisco a week later denied the administration's emergency motion to have the order reinstated (see 1702100042). With release of the second immigration order, the administration revoked the first order and withdrew any further legal appeals.
But Washington thinks the second order keeps the same “unconstitutional provision” as the first by banning nationals of six Muslim-majority countries from traveling to the U.S. for 90 days. The Trump administration “cannot show that the unlawful, discriminatory motives that played a part in the adoption” of the first immigration order “somehow disappeared in adopting nearly identical provisions” of the second, said the state.
Though the ban in the second order, unlike in the first, won’t apply to green-card holders, visa holders and refugees living in the U.S., “it bars entry for virtually all other aliens from the listed countries,” the state said. Those may include students who have been admitted to state universities but not yet received visas, prospective employees of state universities or of private businesses who have been offered positions but not yet obtained visas, students and employees who may need to renew their visas “and many other individuals protected” by the court’s Feb. 3 injunction, it said. Dozens of tech companies said much the same thing in a Feb. 5 amici brief at the 9th Circuit in which they argued Trump’s original immigration order had “immediate, adverse effects on the employees of American businesses,” including workers from major companies who became “ensnared” in the order’s travel restrictions (see 1702060016).
It's the courts, not the president, that decide "whether actions are lawful, and this Court should confirm that its injunction applies to these reissued provisions" in the second immigration order, said Washington. Trump can't "unilaterally declare himself free of this Court’s injunction and reinstate policies that this Court already enjoined," it said. Trump "bears the burden of showing that the factual or legal background has changed significantly enough to warrant a modification of this Court’s injunction," it said. "He has not met and cannot meet this burden."
When a court "enjoins a defendant from implementing policies,” as U.S. District Judge James Robart did when he issued his TRO, “the defendant cannot evade that injunction simply by reissuing the same basic policies in a new form,” the state said. “Courts do not issue injunctive relief in a game of whack-a-mole, forced to start anew at a defendant’s whim.” Administration lawyers didn’t comment Friday.