Justice Dept. calls any harm from new ban ‘speculation’
WASHINGTON — The Justice Department on Monday laid out its first significant legal defense of President Donald Trump’s revised travel ban, arguing in a court filing that the harm opponents say it causes is “speculative” and that the president was well within his authority to issue the directive.
Responding to a lawsuit from the state of Hawaii, Justice Department lawyers asserted that Trump’s new executive order solved any possible legal problems that came with the first one, because it was narrower in scope and outlined a robust list of people who might be exempted.
“Plaintiffs therefore are not entitled to the sweeping relief they seek,” Justice Department lawyers wrote.
Opponents of Trump’s executive order have asked federal judges in several states to block the administration from enforcing the directive, and two judges have scheduled hearings Wednesday to hear arguments on the matter. The order — which suspends the U.S. refugee program and bars the issuance of new visas to citizens of six Muslim-majority countries — is set to take effect Thursday, unless a court intervenes.
Hawaii was the first state to sue over the directive, arguing the new executive order — much like the old — violates the establishment clause of the First Amendment because it is essentially a Muslim ban, hurts the ability of state businesses and universities to recruit top talent and damages the state’s robust tourism industry.
They pointed particularly to the case of Ismail Elshikh, the imam of the Muslim Association of Hawaii, whose mother-inlaw’s application for an immigrant visa was still being processed. Under the new executive order, lawyers for Hawaii said, Elshikh feared that his mother-in-law would ultimately be banned from entering the United States.
Justice Department lawyers countered that the economic harms alleged by the state were “mere speculation” and that Elshikh’s mother-in-law had no reason to sue yet because she had not been denied a waiver to come into the country. The new executive order, unlike the old, spelled out a list of people who might be granted exemptions, including those seeking to visit or live with family in the U.S.
“The Order applies only to individuals outside the country who do not have a current visa, and even as to them, it sets forth robust waiver provisions,” Justice Department lawyers wrote. “Among other things, therefore, plaintiffs cannot show that any individual whom they seek to protect is in imminent risk of being denied entry due to the Order.”
The state will have to convince a judge that Trump’s ban is likely to be ultimately found unconstitutional and will impose immediate, irreparable harms unless it is stopped. A hearing in the case is scheduled for Wednesday afternoon.
Federal judges in Washington state and Maryland are also considering separate challenges to the new ban, and either could preempt the need for action in Hawaii. A hearing in the Maryland case is scheduled for Wednesday morning, and Washington on Monday formally asked a judge to enforce his freeze of the previous ban on the new one and to schedule a hearing for Tuesday.