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Washington State Challenges Trump's Revised Travel Ban


In January, President Trump issued a travel ban on some Muslim-majority countries. And then some states sued. Now President Trump has revised that ban. Here's Attorney General Jeff Sessions announcing the new order.


JEFFERSON SESSIONS: The Department of Justice believes that this executive order, just as the first executive order, is a lawful and proper exercise of presidential authority.

MARTIN: And yet, the lawsuits are coming down the pike once again. A challenge brought by the state of Hawaii claims that the executive order would have a negative impact on tourism. Another challenge being heard in federal court today takes issue with the impact on refugees. And there is still a third suit, this one brought by six states, which wants federal courts to issue a hold on the order before it goes into effect Thursday. That's to give courts enough time to judge the order's constitutionality. The U.S. Justice Department filed papers yesterday asking the judge not to grant the injunction, arguing that the new order passes judicial muster. I spoke with the man leading one of the law suits, Washington state Attorney General Bob Ferguson.

Why don't the changes made by the Trump administration to this executive order satisfy you?

BOB FERGUSON: Yeah. That's an important question. And you're right. There have been some significant changes. For example, the revised order no longer applies to green card holders. That's hundreds of thousands of people. It does not apply to folks who have travel visas already in hand. That's tens of thousands of people more. So we had a great success with our initial litigation.

The problem is, of course, is that at a fundamental level, two provisions of the revised order are basically the same as the original. That is the refugee ban and the travel restrictions on folks from those six countries. And because those have essentially not changed - yes, they've been narrowed but they essentially remain in place - we believe the injunction established by the federal court judge here in Seattle four or five weeks ago remains in effect.

MARTIN: There has been a change to the refugee ban in that Syrian refugees are no longer banned indefinitely, as they were.

FERGUSON: That's correct. But everything else, if you compare the language of the original order and the revised order when it comes to the refugee ban without exception, they're virtually the same. And so our belief is that the injunction established remains in effect for the revised order.

MARTIN: So let's take a step back and just remember what your original case was and why you think it still holds with this revised order. Administration officials, including Homeland Security Secretary John Kelly, have said this is not a ban. It's a temporary pause on certain countries where we don't understand really what the vetting systems are, and they're not up to snuff as we see it. So what's wrong with the new administration in wanting to just double check these vetting procedures?

FERGUSON: Sure. Well, the administration does have and the president has broad authority when it comes to immigration issues but those are not unchecked. It's our position that despite what the administration is saying now is what we're looking at is what Donald Trump said when he was running for president.

He said he wanted to create a Muslim ban. Rudy Giuliani, one of his key advisers, said after the election that Donald Trump asked him to create a Muslim ban but just make it legal. That is strong evidence that the intent behind these executive orders was actually less about national security and more about a Muslim ban.

MARTIN: So that's - that continues to be the basis for your lawsuit is this idea of intention when it comes to this executive order. But can't the administration just argue that they changed their mind, that even if the president had said explicitly on the campaign trail, I want a Muslim man, can't the administration argue that that is no longer the case?

FERGUSON: They can certainly argue it. They've tried to argue that already. And four federal judges - two appointed by Republican presidents, two appointed by Democratic presidents - have completely and utterly rejected all of those arguments by the federal government. Moreover, we're entitled as this case goes forward to discovery.

What that means is we can take depositions of administration officials. We can ask for documents and emails to get at the intent behind this executive order. And we believe that will only strengthen our case as this moves forward.

MARTIN: You have argued specifically that the executive order would have an economic impact on the state of Washington. How so?

FERGUSON: Oh, in numerous ways. So for example, we have now dozens of declarations. And they go to issues like our universities and colleges who no longer get the benefit of students and faculty who come to their - to our universities and colleges.

MARTIN: But wasn't there an exemption for foreign students?

FERGUSON: There was an exemption in the original executive order and in the current one. But there are strong hurdles to achieve any of those exemptions. And that actually remains in place. So the exemption did not save the original executive order from judicial scrutiny and actually being rejected by the federal courts. And we don't think that the revised order changes anything in that regard.

MARTIN: And so you're arguing that because students can't come from abroad, that has an economic impact on your universities.

FERGUSON: That is one piece of our argument. So for example, the tuition that our colleges and universities receive. We had declarations from more than a hundred businesses talking about the negative impacts on their businesses, their ability to recruit and retain top-level talent, the adverse impact on their employees.

So yes, we have dozens of declarations going to the economic harm to the people of the state of Washington and moreover the harm of individuals who can no longer travel there, they cannot have their relatives come to visit them. We have declarations from individuals as well.

MARTIN: But forgive me, I thought another exemption was to allow for familial connections, so if someone wants their mother to visit from Iran that an exemption would be made for that.

FERGUSON: That's correct. And I believe under the current executive order, you have to show that you are not a threat to national security. And again, there was an exemption process under the original executive order.

That still did not save this executive order, the original, from judicial review and from the federal courts unanimously rejecting the original executive order. The fact that it's essentially unchanged for the revised executive order, I'm confident it will not change the analysis from the federal courts.

MARTIN: So this thing is supposed to take hold on March 16. So you have a tight timeframe here.

FERGUSON: Yeah. We've been operating under a tight time frame for a long time. So we put together our original lawsuit over a weekend basically and had it struck down within a week. So yes, things are moving quickly. That's not unusual when you have a timeline like this and a deadline coming up. Courts are used to that. And so we're looking forward to making our case.

MARTIN: Bob Ferguson is the attorney general of Washington State. Thanks so much for talking with us.

FERGUSON: Thank you, Rachel, really appreciate it. Transcript provided by NPR, Copyright NPR.