Washington AG: Trump's new EO shows he "capitulated" on lawsuit

The White House may be busy promoting Donald Trump’s new executive order that temporarily suspends entry to nationals of six high-risk nations, but one of their opponents is busy doing a victory lap. Bob Ferguson, the Attorney General for Washington who partnered with Minnesota in the lawsuit that blocked the first EO, calls today’s new order a sign that Trump “capitulated” on their objections. But does it really?

Washington state attorney general Bob Ferguson says President Donald Trump’s new immigration and travel order from six Muslim-majority nations shows that his original order was “indefensible.”

The new order comes weeks after Ferguson sued Trump over his original order which has been dubbed a ban on Muslims entering the country. A federal judge in Seattle issued a nationwide hold on the order. His ruling was upheld by the 9th U.S. Circuit Court of Appeals.

“By rescinding his earlier Executive Order, President Trump makes one thing perfectly clear: His original travel ban was indefensible — legally, constitutionally and morally,” said Ferguson in a statement. “The President has capitulated on numerous key provisions blocked by our lawsuit, including bans on Green Card holders, visa holders and dual citizens, an indefinite ban on Syrian refugees, and explicit preferences based on religion.”

That analysis is a pretty large stretch. First off, Ferguson had not won on any of those claims; all he had been able to accomplish was getting a temporary restraining order, which the Ninth Circuit held was applicable across the country. The district court had yet to hold a hearing on the merits of Ferguson’s claims, although the judge seemed to signal sympathy with them. Right now, the best that can be said about Ferguson’s lawsuit was that it forced the White House to write their EO more carefully and anticipate the legal attacks better.

Perhaps Ferguson would have prevailed on some or all of the legal and constitutional points, or perhaps not. At least on the “morally” political issue, Ferguson’s lawsuit didn’t have the intended effect, since Trump has replaced the first EO with another, better-tailored replacement. So too does the new EO negate Ferguson’s claims to have won on what Ferguson calls “explicit preferences based on religion.” The same countries save Iraq fall under the new EO, which effectively does the same thing as the first when it comes to entry policy. Ferguson’s argument about religious discrimination would apply to either EO, although the White House argues that the list relies on security assessments about how freely terror networks operate in these countries, and still doesn’t apply dozens of other majority-Muslim nations. On the other points — green-card holders and those with already-issued visas — the Trump administration largely capitulated within days of issuing the first EO, so that’s not exactly news.

Ferguson’s statement included a caveat that he’s still considering filing a lawsuit against the new EO. The ACLU is way ahead of him, announcing within the hour that they will try to block the new travel pause as soon as possible:

The American Civil Liberties Union says it will move “very quickly” to block President Donald Trump’s new travel ban from taking effect, either by amending existing lawsuits that blocked the original order or seeking a new injunction.

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, tells The Associated Press, “We’re going to move very quickly in court to make sure that at least one of the injunctions currently in place around the country remains in place.”

Gelernt says while the new order addresses some legal problems, it does not “eliminate the basic constitutional problem we saw in the first executive order, which is discrimination on the basis of religion. And so we will continue to challenge.”

They may have to start from scratch, and that may not be as easy. This time the White House will have its legal team prepared to defend the new EO, and Ferguson’s declaration of victory might undercut any arguments that the new order doesn’t differ significantly enough from the first to demand a fresh look.