Washington Attorney General Bob Ferguson, who sued successfully to block President Donald Trump's first entry ban, asked a federal judge Thursday to affirm that the suspension of the initial ban applies to the new one.
Ferguson said Trump's new executive order imposes many of the same economic and other harms as the first one in late January, even though it is different in important ways. And he said a federal judge, rather than the administration, should decide whether the original freeze should remain in place.
"The court decides that," Ferguson said, "not the president."
Ferguson, a Democrat, made his request to U.S. District Judge James Robart, the federal judge in Washington state who first suspended Trump's ban nationwide. After Robart imposed that freeze, Trump lashed out on Twitter and targeted Robart personally.
"The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" Trump wrote.
The state of Hawaii already has asked a federal judge there to block Trump's new executive order, which bars the issuance of new visas to citizens of six Muslim-majority countries for 90 days and suspends the refugee program for 120 days. A hearing in that case is set for March 15.
Robart could presumably act before that, and it is possible that other legal challenges will emerge. Ferguson – who sued initially with the state of Minnesota – is expected to be joined by other states, including New York, Oregon and Massachusetts. New York Attorney General Eric Schneiderman dropped out of a case in that state Thursday to be a part of the effort in Washington.
"President Trump's latest executive order is a Muslim Ban by another name, imposing policies and protocols that once again violate the Equal Protection Clause and Establishment Clause of the United State Constitution," Schneiderman said in a statement.
A Justice Department spokeswoman declined to comment.
The first ban affected seven countries and the refugee program, and the administration implemented it by revoking tens of thousands of visas and detaining people as they landed at U.S. airports. The new ban specifically exempts current visa holders and spells out a robust list of people who could be granted waivers as they apply for new visas.
Justice Department lawyers have said that the administration plans to enforce the measure on March 16, unless a court tells them otherwise.
Pursuing the case in Washington state might have strategic advantages, as both Robart and the U.S. Court of Appeals for the 9th Circuit – which is where the case could head after his decision – have previously ruled against the administration on the travel ban. Hawaii is also in the 9th Circuit.
The Justice Department has asserted the new order differs from the old "in critical respects," although before it was inked, White House senior policy adviser Stephen Miller said on Fox News that it would have "mostly minor technical differences" from the iteration frozen by the courts and that Americans would see "the same basic policy outcome for the country." Ferguson said previously that the administration "capitulated on numerous key provisions that we contested in court."
Washington state's lawyers said they would continue to try to use as evidence comments by the president and his top advisers endorsing the idea of a Muslim ban, which they will argue violates the Constitution. They said they believe the burden is on the government to convince a judge that the freeze should not be in effect, rather than the other way around.