AMERICANS’ reputation for litigiousness hasn’t always extended to lawsuits against the government. But since January, the country’s lawyers have been busy suing Donald Trump for a string of unprecedented presidential moves: threatening sanctuary cities, banning transgender troops and blocking critics on Twitter. The highest profile dispute concerns Mr Trump’s three executive orders apparently designed to fulfill a campaign promise he made in December 2015 for a “total and complete shutdown on all Muslims entering the United States”.
The Supreme Court agreed last summer to review two lower-court rulings blocking the March 6th version of Mr Trump’s travel restrictions, but it scrapped the October hearing date after the administration replaced that order with a new one on September 24th. On October 10th, the justices took an additional step: they declared Trump v International Refugee Assistance Project, one of the lawsuits challenging the March order, moot (meaning, in this case, that it is no longer a live controversy). The court will likely dispose of the other case, Trump v Hawaii, later this month when the ban on refugees expires.
As one set of battles over Mr Trump’s appetite for banning Muslim people from America’s shores fizzles out, another is set to begin. Travel ban 3.0, set to take effect on October 18th, shares much with its predecessor, but, like an updated smartphone model, boasts a few new bells and whistles. The most notable detail: one country (Sudan) has been removed from the banned list and three more (Chad, North Korea and Venezuela) have been added. Travelers from Iran, Libya, Somalia, Syria, and Yemen are still largely barred from entering America, but a few caveats soften this: student and exchange visas, for example, are available to people living in Iran.
These tweaks should not fool anyone, the state of Hawaii claimed this week in a complaint filed in federal district court—the same court that froze Mr Trump’s plans last spring. Mr Trump’s order “targets an overwhelmingly Muslim population”, Neal Katyal, lawyer for Hawaii, wrote. The “new order replicates all of the legal flaws evident in its precursors”. The September 24th proclamation violates the separation of powers by, in Mr Katyal’s words, “supplanting Congress’s immigration policies with the President’s own unilateral and indefinite ban”. It is but the latest and least-unrefined attempt to follow through on “the president’s unrepudiated promise to exclude Muslims from the United States”.
Mr Trump’s move, the plaintiffs claim, violates both the constitution and federal immigration law: in 1966, Judge Henry Friendly wrote that “‘discrimination against a particular race or group’ is an ‘impermissible basis’ for exclusion” and presidents may not “draw distinctions on that basis”. The latest travel ban also fails to satisfy the requirement that a president can exclude aliens only “if he ‘finds’ that their entry ‘would be detrimental to the interests of the United States’”. It’s not enough to make a “talismanic incantation” of a general national-security interest, the Ninth Circuit Court of Appeals said in the spring. Mr Trump needs “findings” warranting the particular restrictions.
No findings have been proffered, Hawaii argues, for the sweeping bans on millions of people from six Muslim countries. How do the challengers address the two non-Muslim countries now gracing the list? By dismissing their inclusion as “almost entirely symbolic”. The order blocks only “a small set of Venezuelan government officials from traveling to America on business and tourist visas”. Its ban on travellers from North Korea—”a country that sent fewer than 100 nationals (many of them diplomats) to the United States last year”—amounts to nil. Yet the challengers do not seek to block the Venezuela and North Korea bans. Kim Jong Un’s aggressive posturing presents an “exigent circumstance” that justifies Mr Trump’s ban on Korean travellers, they say, and the Venezuela ban is cabined in ways the other prohibitions are not.
Hawaii is suing Mr Trump on behalf of several plaintiffs: American citizens of Egyptian and Yemeni descent whose relatives abroad would be blocked from travelling to America under travel-ban 3.0; a professor and legal permanent resident whose home institution, the University of Hawaii, is hampered in its goal of attracting “a world-class faculty and student body”; and a mosque that will be unable to “welcome new members and visitors from the affected countries”. Next week, the American Civil Liberties Union (ACLU) has a court date in its own challenge to the travel ban. Its approach is similar to Hawaii’s: “The inclusion of two countries that are not Muslim majority”, the ACLU says, “doesn’t even qualify as a fig leaf.”
As Mr Trump’s travel rules once again land in the judiciary’s lap, prospects for the plaintiffs’ success seem somewhat dimmer than before. Even if the lower-court judges once again block the restrictions, it seems quite unlikely that five Supreme Court justices would be willing to stand up to Mr Trump’s executive order. This time around, though, tricky questions of timing and mootness will not mar the proceedings: the new ban comes with no expiration date.