On Tuesday, the state of Hawaii said it will ask a federal judge to block U.S. President Donald Trump’s revised Muslim Ban, marking the first official legal challenge of the revised executive order which was released on Monday.
In an interview with CNN on Tuesday Neal Katyal, a law professor at Georgetown who is representing Hawaii in the lawsuit, said that while there are some changes in the revised executive order — released a month after an initial version was blocked by a federal court — the underlying legal problems with imposing a travel ban on people from six Muslim majority countries remains.
“To be sure, the new executive order covers fewer people than the old one,” said Katyl, who represented Hawaii when they challenged the first executive order in February, but it “suffers from the same constitutional and statutory defects.”
In February, the 9th U.S. Circuit Court of Appeals temporarily struck down the original executive order ruling that it likely violated the establishment clause of the First Amendment because it intentionally discriminated against Muslims.
That first executive order created both chaos and massive resistance within hours of its signing, as thousands flocked to airports throughout the U.S. in solidarity with those caught up in the ban.
After the original order was struck down, the Trump administration chose not to defend it in court, instead promising to issue a new travel ban which could stand up to a constitutional challenge.
The new executive order was released with little fanfare on Monday, with U.S. Attorney General Jeff Sessions insisting that “this executive order, just as the first executive order, is a lawful exercise of presidential authority.”
Despite this assurance, many of those who were involved in the multiple, and eventually successful, lawsuits against the original Muslim Ban were quick to insist that the new order will likely fail a legal challenge.
“The Trump administration has conceded that its original Muslim ban was indefensible. Unfortunately, it has replaced it with a scaled-back version that shares the same fatal flaws,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “The only way to actually fix the Muslim ban is not to have a Muslim ban. Instead, President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people.”
The new order imposes a 90-day ban on issuing visas to citizens of Syria, Iran, Somali, Yemen, Sudan, and Libya, all targets of U.S. foreign policy.
While Hawaii is the first state to launch a legal challenge — which will be formally filed on Wednesday — other states have indicated they are considering legal action as well.
Eric Schneiderman, New York’s attorney general, said he was reviewing the order adding that, “While the White House may have made changes to the ban, the intent to discriminate against Muslims remains clear.”