Hawai'i to Challenge 'Travel Ban 3.0'

Erika Holt
October 6, 2017

Trump administration lawyers asked a court to dismiss a case challenging the ban on transgender military service, saying it's premature as the ban has not yet been implemented.

"Hawaii fought the first and second travel bans because they were illegal and unconstitutional efforts to implement the president's Muslim ban".

The high court has already dropped the travel-ban argument it had scheduled for October 10 but hasn't decided what to do with the underlying case. "Simply adding an obvious target like North Korea to the list and banning travel by some government officials from Venezuela does nothing to disguise this".

That's not possible given that the new travel ban "replicates the constitutional and statutory defects of the first", Katyal wrote.

It's not clear when the court will decide what to do with the lawsuits.

The March ban barred residents of six Muslim-majority countries - Iran, Syria, Libya, Sudan, Somalia and Yemen.

Hawaii notified the U.S. Supreme Court today that it planned to ask the federal District Court to lift a stay of proceedings in the case, Hawaii v. Trump, so the state could file an amended complaint to temporarily block the new travel directive.

Critics have described the changes as window dressing that leave in place the heart of what they call a Muslim ban; already, immigrant advocacy and civil rights groups have challenged the new travel ban.

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In his letter, Francisco told the justices that there's no sense in holding arguments or issuing a decision about policies no longer in effect.

The challengers, which include Hawaii and the International Refugee Assistance Project, claim the cases are in no way moot.

"The government can not come close to meeting its heavy burden" to "demonstrate that the bans will not be revived", wrote Neal Katyal, the lead lawyer representing the challengers from the state of Hawaii.

The Justice Department urged the justices not to hear the case, to throw out earlier lower court rulings that had invalidated the ban, and to order that the legal challenges be dismissed.

Even if the Supreme Court dismissed the older case, it may still have to weigh in on the issue in the future. If the justices decide not to hear arguments, they urged the court to dismiss their petitions for court review as "improvidently granted" and allow the parties to litigate their dispute in the context of the new order.

In a letter requested by the justices, Solicitor General Noel J. Francisco said the revisions Mr. Trump made, adding several new countries to the ban list and deleting one country from the list, while altering the visa restrictions, makes the new policy different from the previous executive orders.

"It would be profound inequitable to permit the government to control the timing of the case in this manner and then to use any resulting mootness to obtain the very relief it sought on the merits: vacatur of the injunction", he wrote.

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