Trump Issues Revised Travel Ban to Address Legal Challenges

EghtesadOnline: President Donald Trump signed an order restricting entry into the U.S. by people from six predominantly Muslim countries, reviving a signature initiative that stalled in the face of court challenges, sparked global protests and prompted dissent by some of his advisers.

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07 March 2017

The directive takes effect March 16 and removes Iraq from an initial list of seven countries whose citizens cannot travel to the U.S. for the next 90 days. It was narrowed to address legal questions raised by federal courts, with the new version specifying that people who have already been issued visas, green-card holders and dual citizens won’t be denied entry. The administration said the new order addresses urgent security threats, Bloomberg reported.

The new travel ban is certain to trigger a fresh round of legal challenges, risking another blow to the administration’s prestige as it tries to marshal political capital to win passage of an ambitious legislative agenda, including the repeal and replacement of the Obamacare health law, a rewrite of the tax code and a reordering of federal budget priorities to build up the military at the expense of domestic spending. Critics said the new order wasn’t substantially different from the old one, and Democrats belittled it on social media with the hashtag #MuslimBan2.

The order “is a vital measure for strengthening our national security,” Secretary of State Rex Tillerson said. “President Trump is exercising his rightful authority to keep our people safe."

Under the new order, the U.S. Refugee Admissions Program will be suspended for 120 days while a review of screening procedures is undertaken. When it resumes, the number of refugees admitted to the country will be limited to 50,000 in fiscal 2017, according to an administration fact sheet. That’s less than half the limit set in the final year of the Obama administration amid a humanitarian crisis in Syria. The U.S. took in 10,000 Syrian refugees last year.

No Questions

Trump signed the order behind closed doors and made no public statement of his own, a departure from previous executive actions that have been well publicized. Instead, Tillerson, Attorney General Jeff Sessions and Homeland Security Secretary John Kelly went before cameras to explain the order. They took no questions after making brief statements.

The changes reflect a tacit acknowledgment by the White House that the first order, hastily implemented at the end of Trump’s first week in office, was flawed, vulnerable to lawsuits and disruptive to thousands of travelers. The new order, at 6,124 words, is more than twice as long as the first one, reflecting additional detail. But it is nonetheless sure to draw its own legal challenges.

"The new order significantly narrows the old one," said Stephen Yale-Loehr, an immigration law professor at Cornell University. "Nevertheless, I think we will still see litigation" from people including U.S. citizens whose loved ones are blocked from traveling to the U.S., he said.

Department of Homeland Security officials didn’t show any contrition or admit any fault in the first order during a briefing with Republican congressional aides on Monday to brief them on the new plan, according to a person familiar with the discussion. That left a bad taste with some Republicans who feel the administration hasn’t been forthright about its mistakes, the person said.

The American Civil Liberties Union said that Trump’s changes “share the same fatal flaws” as the original travel ban.

“President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people,” Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said in a statement.

The National Restaurant Association said in a statement that it “remained concerned about the negative impacts” of the order on the economy.

“Barring people from entering our country because of where they’re from was wrong the first time around,” Airbnb Inc. co-founder and Chief Executive Officer Brian Chesky said on Twitter. “Still wrong.”

Security Measure

Trump and his aides consistently have described the travel directive as an urgent national security matter. Sessions said the Federal Bureau of Investigation is looking into some 300 individuals admitted to the U.S. as refugees as part of counterterrorism probes, but a congressional aide said it’s unclear whether those investigations have turned up anything.

At the end of January, White House press secretary Sean Spicer described the delay caused by the court in catastrophic terms, saying on Jan. 31 that hesitating could cost lives. But the administration repeatedly delayed issuing a revised order.

“We cannot compromise our nation’s security,” Sessions said on Monday.

Senate Democratic leader Charles Schumer said holding back the new order’s release until after Trump’s well-received speech to Congress on Feb. 28 showed such dire warnings were more about politics than national security.

“Delaying its announcement so the president could bask in the aftermath of his joint address is all the proof Americans need to know that this has absolutely nothing to do with national security,” Schumer said in a statement.

After 90 days, some of the six countries could be removed from the ban or more countries may be added, Spicer said on Monday. "We’re looking at the rest of the entire world and all of the procedures we use to address all countries," he said.

Initial Confusion

The initial Jan. 27 order barred citizens of seven nations from entering the U.S. regardless of their legal status. It set off a weekend of chaos at airports and border crossings as hundreds of immigrants and travelers, including at least one translator who worked with the U.S. military in Iraq, were detained or delayed in being admitted to the country.  Companies, international allies and human rights activists assailed the ban and judges quickly blocked it, forcing the administration into retreat.

Defense Secretary James Mattis and National Security Adviser H.R. McMaster objected to including Iraq on the list of countries covered by the ban. Both are veterans of the two U.S. wars in Iraq and argued it would hinder joint efforts by the U.S. and Iraqi forces to combat Islamic State. Administration officials who briefed reporters said the Iraqi government committed to increased information sharing to assist with vetting.

In a break from past practices, the officials speaking on the call weren’t identified to reporters ahead of the briefing.

Iraq was removed from the list of countries subject to the ban after its government took specific steps to assuage the Trump administration’s concerns, including agreeing to quickly repatriate Iraqis who overstay their U.S. visas and increasing information about its citizens that it shares with the U.S., the officials said.

The new order also omits a provision from the original directive that would have prioritized religious minorities in making admission decisions. Critics said that language demonstrated an unconstitutional bias toward Christian immigrants.

“I wouldn’t call it bulletproof, but I definitely think it’s going to be harder for individuals to challenge this in the court system,” said Sarah Pierce, associate policy analyst at the Migration Policy Institute. One of the biggest challenges for anyone bringing suit against the new order would be establishing standing before a court, since the order excludes anyone that currently has a valid visa.

Court Ruling

The Ninth Circuit Court of Appeals last month rejected the administration’s bid to reinstate the initial order after a lower court judge temporarily blocked it. The states of Washington and Minnesota led the successful legal challenge to the ban, arguing it hurt their citizens and economies.

The appeals court faulted the administration for an inadequate explanation of why the seven countries were singled out: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The administration says those countries were previously designated by Congress and former President Barack Obama as raising terrorism concerns. The new order includes sections describing the threat posed by each of the six countries covered under the travel ban.

“We are carefully reviewing the new Executive Order to determine its impacts on Washington state and our next legal steps," the state’s attorney general, Bob Ferguson, said in a statement.

Though the administration has denied its travel restrictions are based on religion, its legal defense has been hampered by declarations Trump made in his presidential campaign that he would keep Muslims out of the U.S. Former New York Mayor Rudy Giuliani, a close Trump ally and informal political adviser, also told Fox News when the order was initially issued that Trump sought to legally enact a Muslim ban.

The administration has argued Trump’s orders should be judged on their own, but the San Francisco-based appeals court judges said that "evidence of purpose beyond the face of the challenged law" can be used to determine its lawfulness.

U.S. District Judge Leonie Brinkema said on Feb. 13 that she gave little weight to the administration’s assurances that it wasn’t banning Muslims, considering Trump had in 2015 called for a "total and complete shutdown of Muslims entering the U.S." She also cited the Giuliani interview.