Ferguson defeated first travel ban, now seeks to block third
OLYMPIA — Attorney General Bob Ferguson today announced he has asked a federal judge to block President Donald Trump’s latest version of his travel ban. This version would create an indefinite ban on travel by millions of people, including many with close ties to Washington.
Trump issued his original travel ban in January. Washington was the first state to file a lawsuit, which resulted in Judge James Robart of the U.S. District Court for the Western District of Washington halting the travel ban nationwide. After a unanimous decision by a panel of the U.S. Court of Appeals for the Ninth Circuit upholding Judge Robart’s ruling, the Trump Administration declined to appeal to the U.S. Supreme Court. The Trump Administration paid Washington state’s costs of responding to the appeal, and Trump rescinded the ban.
Trump then issued a second, narrower travel ban. Washington state has not been a party to that litigation as it moved through federal court.
The second travel ban expired on Sept. 24, the same day Trump issued his third travel ban, which Ferguson is now challenging.
“We defeated President Trump’s first travel ban,” Ferguson said. “This one is also unlawful, and it is hurting families, businesses and universities in our state. I will continue to hold the President accountable to the rule of law.”
Ferguson filed a motion for temporary restraining order (TRO) in U.S. District Court for the Western District of Washington late yesterday, asking the court to block implementation of the third travel ban. He also amended his original complaint before the court, pending since the first travel ban. The states of California, Maryland, Massachusetts, New York and Oregon are also joining Washington as plaintiffs in this case.
Washington became the first state to stop the first travel ban because of a similar TRO motion.
While the Supreme Court had previously scheduled oral argument to hear challenges to the second travel ban, it canceled those arguments following the President’s issuance of the third travel ban and has indicated that the prior challenges are likely moot. It did not comment on the merits of the cases, or the legality of the third travel ban.
Washington’s new filing includes dozens of declarations by affected Washingtonians, universities, students, faculty and small business owners.
Differences from previous bans
Trump’s third attempt at a travel ban is broader than his previous efforts because rather than imposing a “temporary pause,” it indefinitely bans immigration by individuals from six majority Muslim countries (Iran, Libya, Somalia, Syria, Yemen and Chad). North Korea is also included, though that provision is largely irrelevant because immigration from North Korea to the United States is virtually non-existent. Immigration from North Korea is also barred under separate sanctions orders.
The order also affects a very small number of Venezuelan government officials and their families, but unlike its impact on Muslim-majority countries, it does not bar travel by anyone else in Venezuela.
Similarities to previous bans
The third travel ban has many of the same fatal flaws as its predecessors.
Yet again, it targets Muslims in violation of the Establishment Clause and Equal Protection Clause of the Constitution.
Yet again, it completely bars immigration by individuals from certain countries even though federal law — the Immigration and Nationality Act — prohibits discrimination based on nationality. And it does so even though this Administration’s own Department of Homeland Security concluded in an internal report that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”
And yet again, for Muslim-majority countries, the ban applies even to people who pose absolutely no plausible threat of terrorist activity, such as young children and grandparents seeking to visit their relatives here.
The ban does not explain its exclusion of non-Muslim majority countries such as Belgium where there have been widely documented problems with information sharing, and whose nationals have carried out terrorist attacks on Europe.
The latest ban also exceeds the President’s authority in multiple ways.
Congress, not the President, has the authority to make immigration laws. The latest executive order is essentially a new immigration law. Additionally, Congress has already enacted comprehensive visa and admissibility rules that conflict with the terms of the latest travel ban.
The federal government has argued that the President has the authority to issue these travel bans in the interest of national security. However, in order to exercise that authority, the President must provide evidence an action is in the interest of national security — and has failed to do so.
The latest travel ban restates the previous vague “national security” concerns that courts struck down.
In 2017, the Attorney General’s Office has prevailed four times against the Trump Administration. Every court to have issued a decision has ruled in favor of the Washington Attorney General’s Office in cases it has brought against the Trump Administration.
In January, Ferguson filed a lawsuit challenging the legality of President Trump’s original travel ban. At the same time, he sought a temporary restraining order blocking its implementation while the case proceeded. Washington argued that its challenge to the constitutionality of the Executive Order was likely to ultimately succeed and the ban was causing extraordinary harm to Washington state and its residents, so the court should block the travel ban until the case could be ultimately decided.
U.S. District Court Judge James Robart granted the nationwide temporary restraining order. The U.S. Court of Appeals for the Ninth Circuit upheld the order.
Contrary to some of President Trump’s tweets following the ruling, his Administration chose not to appeal the restraining order against the original travel ban to the U.S. Supreme Court.
In fact, the Trump Administration dropped its appeal, and reimbursed the Washington State Attorney General’s Office for its court costs.
The Trump Administration rescinded the first executive order and replaced it with a revised travel ban.
Issued on March 6, the second travel ban made significant changes, but Ferguson and other Attorneys General believed the second ban was also unlawful and unconstitutional. Ferguson amended his lawsuit to challenge the legality of the President’s revised ban.
Judge Robart heard Washington’s challenge to the revised travel ban on March 15, but before he could rule, judges in Maryland and Hawaii issued nationwide injunctions blocking the implementation of the ban. Judge Robart chose not to issue a ruling given that the revised travel ban was already halted.
The Trump Administration appealed those two injunctions. The Administration lost its appeal to the Court of Appeals for the Fourth Circuit, which upheld the Maryland injunction, and ruled that the Executive Order “in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination."
The Administration also lost its appeal in the Ninth Circuit, which held that the Executive Order violated the Immigration and Nationality Act.
The Trump Administration asked the Supreme Court to review those decisions and to stay them. On June 5, the President tweeted: “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”
The court partially stayed the rulings, allowing the travel ban to partially go into effect, and scheduled argument for Oct. 12. But after the President issued the third travel ban, the court cancelled the arguments and declared the prior challenges at least partially moot.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Brionna Aho, Interim Communications Director, (360) 753-2727; firstname.lastname@example.org