President Donald Trump’s rejiggered executive order restricting travel to the United States will face a serious legal challenge no matter what his lawyers and political counselors craft.
While some revisions could be straightforward in the new order expected next week, like a clarification that legal permanent U.S. residents aren’t restricted, any continued targeting of majority-Muslim countries will confront a wall constructed in part by Trump’s own words.
The net result will be ongoing scrutiny, continued uncertainty and possible naysaying from the very judges whose legitimacy Trump has repeatedly questioned.
“If there’s still a focus on majority-Muslim countries, and there’s still a travel ban, there will still be challenges,” Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants Rights Project, said in an interview Friday.
Issued quickly Jan. 27, Trump’s initial executive order temporarily banning travel to the United States by citizens of seven majority-Muslim countries lost repeated court battles. Most emphatically, a three-judge panel of the San Francisco-based U.S. 9th Circuit Court of Appeals on Feb. 9 unanimously upheld a temporary restraining order blocking the ban from taking effect nationwide.
On Thursday, Trump’s Justice Department said in a court filing that instead of continuing an appeal of the court’s order, the White House would soon offer a new and improved executive order.
“We are issuing a new executive action next week that will comprehensively protect our country,” Trump said in a news conference Thursday.
Trump managed to cloud the waters, by simultaneously asserting that “we are appealing” the 9th Circuit loss and “we’ll be going along the one path and hopefully winning that at the same time we will be issuing a new and very comprehensive order to protect our people.” Through the confusion, though, shone the consistent idea of a rewritten executive order.
Unlike with his first executive order foray last month, Trump now has Attorney General Jeff Sessions in place to help with the framing.
“It appears there are a lot of unaddressed issues that will be addressed,” attorney Herbert W. Titus, who filed a legal brief on behalf of groups supporting the executive order, said in an interview Friday, “and who knows how long that will take.”
The president intends in the near future to rescind the order and replace it with a new, substantially revised executive order to eliminate what the panel erroneously thought were constitutional concerns.
Justice Department legal brief, Feb. 16
The president and his team could be on sound legal footing, even if they catch political heat, if they stick with the original order’s overall cap of 50,000 refugee admissions in fiscal 2017, down from the current 110,000 set by former President Barack Obama. Judges who have ruled against the original order largely have not dealt with this across-the-board reduction.
A targeted, temporary ban on admitting Syrian refugees might likewise be carried over from the initial order.
“The 9th Circuit analysis didn’t really apply to refugees, so it’s entirely possible that the replacement might proceed with the temporary suspension of the refugee programs,” Kansas Secretary of State Kris Kobach, who served on Trump’s transition team, said in an interview Friday.
Some specific revisions, on the other hand, appear inevitable, based on the court proceedings to date.
The hastily written initial order, notably, appeared ambiguous in its treatment of legal permanent U.S. residents. Seeking to impose clarity several days after the order was issued, White House Counsel Donald F. McGahn II issued “Authoritative Guidance” asserting that the travel ban did not apply to legal permanent residents.
The 9th Circuit panel said that wasn’t enough, despite McGahn’s use of capital letters.
“In light of the government’s shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings,” the appellate panel stated.
Because of the appellate court’s strongly voiced skepticism about whether “the White House counsel is empowered to issue an amended order superseding the executive order,” Trump himself almost certainly will explicitly exclude legal permanent residents from whatever limitations the next order imposes.
The Trump administration, moreover, has already lost two crucial threshold fights, which at least in the initial stages could turn out the same way in the next round of challenges. The administration argued that the states of Washington and Minnesota lacked the legal standing to sue and that courts could not review the president’s action.
The 9th Circuit panel bluntly rejected both arguments, observing that the travel restrictions hurt the states’ universities and declaring that “there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
The government could keep repeating these arguments, but the executive order might require significant rewriting if the government is to get a different judicial conclusion, at least in certain courts.
Trump could have have equal difficulty in calibrating the initial order’s focus on certain countries. The Jan. 27 order banned admissions to the United States for 90 days of citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. It suspended the admission of Syrian refugees indefinitely and all other refugees for 120 days.
Any continued focus on majority-Muslim countries will confront the same problem that undermined Trump’s initial order. While the president cited national security concerns, the judges who have ruled against him have cited his campaign rhetoric about Muslims and the fact, as U.S. District Judge Leonie Brinkema noted Monday, that “the ‘Muslim ban’ was a centerpiece of the president’s campaign for months” to rule that the order was illegal.
These same campaign statements remain ready to pop up again in any future challenge to the president’s motivations.
“No matter what he does, it’s not going to erase the statements that he’s made,” said Gelernt, of the ACLU.
Lindsay Wise contributed to this report.