Court hearings in Hawaii and Maryland on Wednesday could decide the immediate fate of President Donald Trump’s revised travel ban, which is set to take effect at 4.01pm (GMT) on Thursday.
The courts have been asked in lawsuits challenging the ban to issue restraining orders that would prevent it from taking effect pending resolution of the litigation.
The new order, which temporarily bars the entry of most refugees as well as travellers from six Muslim-majority countries, was signed by the president on March 6, with a 10-day lag before it took effect.
It replaced an earlier, broader order that was signed amid much fanfare a week after Trump’s January 20 inauguration. The first order temporarily banned travellers from seven countries in addition to most refugees and took effect immediately, causing chaos and protests at airports across the country and around the globe.
States and civil rights groups filed more than two dozen lawsuits against the first order, arguing it discriminated against Muslims and violated the US Constitution.
In response to a lawsuit by Washington state, a federal judge in Seattle last month issued a nationwide halt to the first order. That decision was upheld by a US appeals court.
The Trump administration made changes in an attempt to address the judges’ concerns. But the states and civil rights groups went back to court arguing the new ban did not solve the problems and should be stopped.
Who would be harmed
One central question likely to be raised at the hearings is who would be harmed by the new ban. The administration in its new order explicitly exempts legal permanent residents and existing visa holders and provides a series of waivers for various categories of immigrants with ties to the United States.
While the new order still bars citizens of Iran, Libya, Syria, Somalia, Sudan and Yemen from entering the country for 90 days, Iraq is no longer on the list. Refugees are still barred for 120 days, but an indefinite ban on all refugees from Syria was deleted.
To succeed, the plaintiffs must show they have “standing” to challenge the ban, which means they must have been harmed by the policy.
If they get past that hurdle, the plaintiffs will argue that both the new ban and the old discriminate on the basis of religion and are unconstitutional.
The Trump administration disputes that allegation, citing as evidence that many Muslim-majority countries are not included in the ban.
In the Hawaii case, the island state says its universities and tourist economy would be harmed by the restrictions on travel.
Hawaii also sued in conjunction with a plaintiff named Ismail Elshikh, an American citizen from Egypt who is an imam at the Muslim Association of Hawaii. Elshikh says his family will be harmed if his mother-in-law, who lives in Syria, is prevented from visiting because of the restrictions.
The government in its response to Hawaii said Elshikh had not been harmed because the ban allows for waivers, and his mother-in-law could apply for one.
In the Maryland case, the American Civil Liberties Union is representing refugee resettlement agencies it says will be hurt by the ban because it affects their operations. The ACLU adds that some of the agencies’ clients are in conflict zones and face imminent danger even if they are only temporarily barred from the United States.
“All of those exemptions and waivers were an effort to shore up this discriminatory order after the fact,” said Cecillia Wang, ACLU deputy legal director told reporters on a conference call with reporters.