Friday, February 3, 2017
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.