Wednesday, March 8, 2017
The President's March 6, 2017 Executive Order (still unnumbered) which we discussed here supplants the previous EO which was enjoined by the Ninth Circuit in Washington v. Trump. The state of Hawai‘i also challenged the previous EO, as we discussed here, but there was little reason for that case to proceed while the Ninth Circuit injunction was in force.
The day after the new EO, Hawai‘i requested leave to file a Second Amended Complaint; Judge Derrick Watson has granted leave to file the Second Amended Complaint and lifted the stay on the litigation.
The amended complaint recites new facts relevant to the second EO in support of its essential arguments that the new EO is a "Muslim Ban" and that it cannot pass constitutional scrutiny, including some facts regarding the Administration's actions before the new EO:
For several weeks before its release, members of the Administration had foreshadowed the arrival of the revised Executive Order.
- On February 21, Senior Advisor to the President, Stephen Miller, told Fox News that the new travel ban would have the same effect as the old one. He said: “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.”
- The White House originally indicated it would sign the new Executive Order on Wednesday, February 29, 2017, but then postponed the announcement. One Administration official told a news outlet on February 28 that a reason for President Trump’s delay in signing an updated Executive Order was “the busy news cycle,” and the desire of the President that the new order “get plenty of attention.”
- A senior Administration official told a different news outlet on March 1, 2017, that a related reason for the delay in releasing the updated Executive Order was the “positive reaction” to President Trump’s “first address to Congress” on the evening of Tuesday, February 28, 2017. That article reported that “[s]igning the executive order Wednesday, as originally indicated by the White House, would have undercut the favorable coverage,” and the senior Administration official “didn’t deny the positive reception was part of the [A]dministration’s calculus in pushing back the travel ban announcement.”
The Causes of Action in the Complaint remain substantially the same (although there are now 8 counts rather than 7; one of the mixed statutory claims in the original complaint has now been separated). The constitutional claims include the Establishment Clause, the Equal Protection component of the Fifth Amendment, Procedural Due Process, and the innovative count alleging a violation of the substantive due process right to international travel. The Second Amended Complaint is a bit more specific regarding international travel, including citizen's protected interests in the right of specific non-citizens to travel internationally and come to Hawai‘i.
The biggest difference is the addition of a plaintiff, Ismail Elshikh, an American citizen of Egyptian descent, resident of Hawai‘i for over a decade, with a Syrian mother-in-law who wants to visit the family and her grandchildren. This addition, along with more specific allegations regarding the number of foreign students and faculty members from the banned countries, would be relevant to standing issues. (Recall that the Ninth Circuit found Washington state had standing largely because of its universities and colleges).
Also interesting for the standing issue is the continued allegation of Hawai'i as having an economy driven by tourism, now buttressed by an allegation that
the first Executive Order and the new Executive Order have the effect of depressing international travel to and tourism in Hawai‘i. Under the new Executive Order, Hawai‘i can no longer welcome tourists from the six designated countries. This directly harms Hawaii’s businesses and, in turn, the State’s revenue.
The new complaint repeats the identity of Hawai'i as the "Aloha State": "known for its tradition of welcoming all people with tolerance and mutual respect." While there is not a Tenth Amendment claim in this complaint (or any of the direct state challenges to the EO) unlike in the litigation involving "sanctuary cities," issues of federalism and conflicting state-federal identities are implicit.