Donald Trump's new travel ban faces a trio of lawsuits

The order is due to take effect this week

On March 6th, following a shellacking in several federal courts, Donald Trump quietly released a revised version of his executive order banning travel from a handful of Muslim countries. The new order excised a few of the more objectionable provisions (lifting restrictions on green-card holders and on people who already have valid visas) and padded the closing section to explain why travelers from six countries should remain banned; but why Iraqi nationals deserve a reprieve. Twice as long as the first order, the revision was crafted with the hope of withstanding further litigation concerning its legality and constitutionality. Now, on the eve of its March 16th implementation date, the ban again faces a barrage of legal challenges. 

One tack is to march back to James Robart, the federal district judge in Seattle who issued a temporary restraining order against Mr Trump's January 27th ban in early February. Mr Robart's decision, which was upheld unanimously by a three-judge panel of the Ninth Circuit Court of Appeals, applied to the entirety of Mr Trump's first executive order. Washington state, joined by California, Maryland, Massachusetts, Minnesota, New York and Oregon, now say the restraining order should apply to the heart of the new travel ban. "When a court enjoins a defendant from implementing policies", the states write, "the defendant cannot evade that injunction simply by reissuing the same basic policies in a new form". To permit Mr Trump to go forward with his March 6th order is to entertain a "game of whack-a-mole, forced to start anew at a defendant's whim". The states then quote an adviser to Mr Trump, who said the new ban reflects "the same basic policy" and that "the goal is obviously to maintain the way that we did it the first time". Mr Trump may assert that Mr Robart's ruling on the first travel ban does not prevent him from enforcing his edited version. But "[s]aying it", the states argue, "does not make it so".

On March 13th, Mr Robart invited Mr Trump's lawyers to respond to this challenge by 4:30pm on March 14th, nothing that he would not schedule a hearing on the matter before March 15th. And Mr Robart inserted a potentially revealing conditional: "if the court schedules a hearing... the court will permit the parties to appear by telephone". This holds open the possibility that the judge will rule only on the basis of the brief and could kneecap the March 6th ban before it goes into effect.

Two federal courts - one in Maryland, another in Hawaii - will hear challenges to the travel ban on March 15th. Both lawsuits raise a host of constitutional complaints, including that the ban contravenes the due-process clause of the Fourteenth Amendment and discriminates against Muslims in violation of the equal-protection clause and the First Amendment rule against establishing religion. The Maryland hearing focuses on the plight of refugees. The American Civil Liberties Union and the National Immigration Law Center are representing the Hebrew Immigrant Aid Society (HIAS) and a number of named plaintiffs with family members stuck in limbo in Iran, Somalia and elsewhere. They are attempting to save America's refugee program from a 120-day suspension. Mr Trump's order, HIAS says, will "close the door" on "437 individuals [who] were ready to travel to the United States and be resettled" in the coming weeks.

The Hawaii case, meanwhile, names Ismail Elshikh, an imam with family in Syria, as a co-plaintiff. Mr Elshikh's mother-in-law's visa application was put on hold after Mr Trump's first travel ban. With the advent of the second, Mr Elshikh "fears that his mother-in-law will, once again" be prevented from visiting Hawaii and meeting her grandchildren, "because she is not a current visa holder". Beyond the "deprivation of contact with loved ones", Hawaii claims, Mr Trump's travel ban will hurt tourism and prevent universities from hiring and attracting faculty and students from the six banned countries.

A restraining order from any of the three courts could deal Mr Trump another significant setback in fulfilling a watered down version of his campaign promise to ban all Muslims from entering America. The president's chances of success will turn on how persuaded the judges are that the softened order avoids obvious constitutional trouble and that its national-security justification appears to stand on firmer ground. The first time around, Mr Robart and the Ninth Circuit judges found the Justice department's lawyers woefully unprepared to explain why the ban was necessary to protect America from harm. For the second round of litigation, Mr Trump's lawyers will come armed with a few arrow in their quiver to flesh out that claim. But it remains to be seen how persuasive their case will be. Judging by the main evidence cited in the briefs - a two-page letter to Mr Trump from Jeff Sessions, the attorney-general, and John Kelly, secretary of homeland security - the administration may still have an uphill climb. 

The letter warns vaguely of "weaknesses in our immigration system that pose a risk to our nation's security". It then implores Mr Trump to "diminish those risks by directing a temporary pause" in travel from countries that sponsor terrorism or "are unable or unwilling" to disclose information about their nationals to the American government. The letter then gestures - without detail or corroboration - toward "approximately 1000 pending domestic terrorism-related investigations" and "more than 300" refugees who were under investigation for "potential terrorism-related activities". Who are these individuals? Where did they come from? When did they arrive in America? What are the charges? No word. The letter then undercuts its own logic by acknowledging that the terror-related investigations involve "individuals from countries around the world", not only from the six banned Muslim-majority countries.

Presidents are afforded wide discretion by judges in the arenas of immigration and border control. The fatal flaw of the first travel ban was its complete lack of a justification. The second travel ban tries to fill that gap with a few vague statements in a conveniently timed letter from two members of Mr Trump's cabinet. Courts east and west will now determine if that is enough of an improvement.