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States are so confident Trump's second travel ban is unconstitutional that they're reusing the old lawsuits

Within days of President Donald Trump’s first executive order halting travel to the United States from seven majority-Muslim countries, states and organizations filed a flurry of lawsuits to fight the ban. And though Trump issued a revised ban Monday, many of those states and organizations believe the policies are so similar that they don’t even need to file new lawsuits.

Washington state — the only state to secure a nationwide halt of Trump’s first executive order — asked a judge Thurday to apply that halt to the revised version. The administration can’t force states to play “a game of whack-a-mole,” the request argues, by simply reissuing the same policy with minor tweaks.


Like the original version, Trump’s revised executive order still bars individuals from Sudan, Syria, Somalia, Iran, Libya, and Yemen from coming to the United States, though now Iraqis and people with valid visas and green cards can enter.

“Just because there’s fewer people impacted should not change the court’s analysis,” Washington Attorney General Bob Ferguson told VICE News. “The intent behind this executive order was essentially to create a Muslim ban …. They’ve issued a revised executive order that essentially does not change the language of the key sections.”

If U.S. District Judge James Robart agrees, the travel ban will be be stopped before it can go into effect on March 16.

One of the biggest questions Robart faces, Harvard Law School professor Gerald L. Neuman said, is whether to consider the ban on its own — or consider that a court already found a similar policy to be likely unconstitutional. Most of the time, he said, a court would do the latter.

“This first ban is a crucial part of the background of the second ban. It’s not as if it can be wiped out as if it didn’t exist,” Neuman said. “It doesn’t go off the books just because it’s been replaced and this is the replacement.”

While Washington was among several states to file a lawsuit against Trump’s first executive order, it’s the only challenge that led to a nationwide halt of the policy. That means it’s the only state with the standing to ask for the same ruling to apply to the revised ban, according to Justin Cox, a staff attorney with the National Immigration Law Center. Other lawsuits — including one in Maryland from Cox’s organization — can simply change their previous complaints instead of filing new lawsuits.


Adam Winkler, a constitutional law professor at the University of California, Los Angeles, said the differences between the policies may make Judge Robart’s decision “a close call,” though.

“On the one hand, the government has clearly curtailed the scope of this ban so significantly, we can’t underestimate this second policy in terms of scope than the first policy,” he said.

Then again, members of Trump’s inner circle have claimed that the revised ban accomplishes roughly the same outcome as the first. “Those are mostly minor, technical differences,” Stephen Miller told Fox News’ “100 First Days.” “Fundamentally, you’re going to have the same basic policy outcome for the country.”

Because of those statements, Cox compared the government’s revised ban to a company caught discriminating in its hiring. If an employer said, “‘Hey, guess what, we got rid of Policy X, and we now have Policy Y, which looks exactly the same, so the injunction doesn’t apply,’” Cox said. “The courts are going to be skeptical of that.”

“Litigation is not supposed to be a shell game,” he added.

So far, three states have challenged the revised executive order, and other states, as well as organizations, plan to do the same.

Filed lawsuits:

  • Oregon joined Washington’s request on Thursday.
  • Because Minnesota had already joined Washington’s challenge to the original ban, the state is part of the new challenge as well.
  • Hawaii was the first state to challenge Trump’s revised executive order by amending its previous lawsuit, which had been put on hold in the wake of the revamped ban.

Impending lawsuits:

  • New York and Massachusetts Attorneys General Eric Schneiderman and Maura Healey plan to join Washington’s lawsuit on Monday, Ferguson told VICE News.
  • The National Immigration Law Center plans to file an amended lawsuit against the ban in Maryland, Cox said.
  • The deputy director of the American Civil Liberties Union’s Immigrant’s Rights Project told NBC that the organization will file suit against the revised ban. “We don’t think that courts who have seen it as religious discrimination will change their minds,” he said.

Editor’s note: An earlier version of this article incorrectly stated that Washington filed its request on Friday, instead of Thursday.