Hawaii sues to stop implementation of revised Executive Order

The State of Hawaii has filed a lawsuit asking a federal judge to halt the implementation of President Donald Trump’s revised Executive Order calling for a 90-day halt to visa issuance to nationals of six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen.

The new Executive Order is set to take effect March 16. Litigation was widely expected, and Hawaii became the first party to challenge the new order late Tuesday night.

Key points:

• In a 38-page filing, Hawaii alleged that the March 6 Executive Order violates the Constitution, the Immigration and Nationality Act and other federal statutes. “The Executive Order bars students, tourists, family members, and other visitors from the State on grounds that Congress and the Constitution have expressly prohibited,” the filing says.
• Both Hawaii and the federal government asked the court for an expedited schedule. The court has set a hearing for March 15. Hawaii will file a complaint and motion for a temporary restraining order Wednesday, and the government’s opposition is due Monday.

Background: The March 6 Executive Order was issued after an initial travel ban stalled in federal court. The new order was written in part to survive judicial review, and Attorney General Jeff Sessions said at a press conference Monday that it represented a “lawful and proper exercise of presidential authority.” The order permits travel by green card holders, current visa holders and dual nationals. It also does not cover Iraqi nationals, who were included in the initial Executive Order.

Hawaii had filed a lawsuit to stop the implementation of the first order, but that litigation was rendered moot after a federal judge in Washington imposed a nationwide injunction that was later upheld by the Ninth Circuit court of appeals. Attorneys for Hawaii said their filing that the “second Executive Order is infected with the same legal problems as the first Order” and will ask the court to block its implementation until questions of the order’s legality can be settled.

BAL Analysis: BAL will continue to follow the legal challenges to the March 6 Executive Order, which, absent a court ruling to block its implementation, is set to take effect March 16. From now until March 16, foreign nationals should continue to be able to enter the U.S. under the rules that were in place before the initial Executive Order was signed. Employers with personnel inside the U.S. who would be subject to the new order, however, should continue to advise employees to exercise caution in planning travel.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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