Politics & Government

Trump’s new travel ban could still face legal problems

Trump administration announces new travel ban

Three Cabinet secretaries — Secretary of State Rex Tillerson, Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly — on Monday discussed President Donald Trump's new travel ban. "This revised order will bolster the security
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Three Cabinet secretaries — Secretary of State Rex Tillerson, Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly — on Monday discussed President Donald Trump's new travel ban. "This revised order will bolster the security

President Donald Trump on Monday reissued his executive order limiting travel to the United States by citizens of six majority-Muslim nations, softening some of the most objectionable pieces but still leaving the policy vulnerable to legal challenges.

The revisions address some of the legal problems that crippled the first order, which prompted more than two dozen lawsuits filed in federal courts from California and Washington state to Massachusetts and Pennsylvania, but others remain.

Notably, the new order clarifies that it doesn’t apply to legal U.S. permanent residents and it does not appear to give special consideration to Christians.

Clete Samson, an immigration attorney who spent years as a federal trial attorney for the Department of Homeland Security, said he thought the courts would recognize Trump’s authority in signing the ban but still might think the policy failed to address due process and equal protection issues.

“It remains to seen whether the court will think this goes far enough,” he said.

The revised order remains broader, temporarily banning all people from multiple countries. Previous presidents relied on the same federal law to prevent much smaller groups from entering the United States.

“The revised executive order is essentially old wine in a new bottle,” said Stephen Yale-Loehr, a Cornell University Law School professor who is co-author of a 21-volume treatise on immigration law. “It assumes that travelers from the six Muslim-majority countries and all refugees are inherent security risks. . . . The revised executive order will not quell litigation or concerns.”

This revised executive order advances our shared goal of protecting the homeland. We will continue to work with President Trump to keep our country safe.

House Speaker Paul Ryan, R-Wis.

The original order Jan. 27 banned admissions to the United States for 90 days of citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

The new order no longer includes Iraq after leaders agreed to more vetting conditions but it freezes for 90 days the entry of anyone from the six remaining countries who does not already have a valid visa. It also puts a 120-day moratorium on refugee admissions from other countries.

“We must undertake a rigorous review of our visa and refugee vetting programs to increase our confidence in the entry decisions we make for visitors and immigrants to the United States,” Secretary of Homeland Security John Kelly said. “We cannot risk the prospect of malevolent actors using our immigration system to take American lives.”

Discriminating against people from certain countries with no evidence that they pose any greater risk than those from other countries not affected is more about politics than about safety.

Sen. Tim Kaine, D-Va.

White House Press Secretary Sean Spicer said Monday that other countries could later be exempt from the policy or be excluded later if they, too, took proactive vetting steps like Iraq. But Spicer said each country was different and their actions would need to be examined on a case-by-case basis.

Trump’s initial order created chaos at U.S. airports as immigration and customs agents initially blocked the entry of all citizens from the seven countries, including those who had lived in the United States for years.

The new order doesn’t go into effect until March 16, to allow for a smoother implementation and to prevent federal employees from potential legal challenges, said a senior administration official.

“There are not going to be folks stopped tonight from coming into the country because of this executive order,” said the official, who was knowledgeable of the situation but not authorized to speak publicly.

Apart from the removal of Iraq, the new travel ban is “essentially the same as the old travel ban” and has the same fundamental flaws, said Rep. Adam Schiff of California, the top Democrat on the House Permanent Select Committee on Intelligence.

“Its choice of countries is arbitrary, its effect will be counterproductive and its real goal is not improved security but meeting a campaign commitment to ban Muslims,” Schiff said.

The United Nations also raised concerns. U.N. High Commissioner for Refugees Filippo Grandi noted that refugees are people forced to flee war, violence and persecution in their home countries.

“The imperative remains to provide protection for people fleeing deadly violence, and we are concerned that this decision, though temporary, may compound the anguish for those it affects,” Grandi said.

The judges who have ruled against Trump have cited his rhetoric concerning Muslims and the fact that, as Virginia-based U.S. District Judge Leonie Brinkema noted in a ruling last month, “the ‘Muslim ban’ was a centerpiece of the president’s campaign for months.”

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

The administration said 300 people who had entered the country as refugees were currently being investigated by the FBI for potential terrorism threats. “That is not a small number,” said an administration official who was knowledgeable of the situation but authorized to speak publicly. The official said the individuals had either infiltrated the United States or were radicalized following entry.

To our allies and partners around the world: Please understand this order is part of our ongoing efforts to eliminate vulnerabilities that radical Islamist terrorists can and will exploit for destructive ends.

Secretary of State Rex Tillerson

The release of the new ban ends weeks of haggling between Homeland Security and Justice department officials over whether to revoke some of the visas of some 60,000 to 100,000 people from the seven countries. Those visas were reinstated after a federal judge in Seattle blocked the initial executive order.

Spicer said he did not know how the administration would proceed in the still-pending court case. He said the administration still believed that the first order was constitutional but did not want to wait a year for the issue to be litigated.

In issuing his decision blocking the order, U.S. District Judge James Robart sided with the states of Washington and Minnesota, which argued that Trump’s travel ban targeted Muslims and violated the constitutional rights of immigrants and their families.

The new order seeks to get around the issue by ending a special carve-out for Christian migrants that some saw as an indication that the ban was discriminatory. It also more clearly exempts green-card and visa holders.

While it includes Syria, nationals from the country are no longer banned indefinitely but are part of the 120-day moratorium.

In a notice filed Monday in Robart’s court, Justice Department lawyers said the concerns raised by the lawsuit filed by the states of Washington and Minnesota “are no longer at issue.”

With restrictions removed on legal permanent residents or anybody with a visa, “no one who is approved for travel into the United States will be denied entry” under the new executive order, said the 17-page brief written by acting Assistant Attorney General Chad A. Readler.

The government did not, however, ask Robart to lift the temporary restraining order he imposed Feb. 3 that blocked Trump’s Jan. 27 executive order. It said “any relief sought” by the plaintiffs “should be assessed in a traditional manner, allowing this court a more complete opportunity to assess the provisions of the new executive order, should the states assert a challenge to them.”

Washington state Attorney General Bob Ferguson said in a statement that he was reviewing the order.

Ferguson said Trump’s new executive order “makes one thing perfectly clear: His original travel ban was indefensible – legally, constitutionally and morally.” The administration, Ferguson said, “has capitulated on numerous key provisions blocked by our lawsuit,” including bans on legal permanent residents, visa holders, dual citizens, Syrian refugees and “explicit preferences based on religion.”

Iraq was removed from the list after Iraqi government officials agreed to increase the level of vetting by its own officials. Senior Trump administration officials said the Iraqi government would share additional information with the United States about its nationals. Iraq also agreed to accept nationals who have been ordered deported by the United States for overstaying their visas and other deportable offenses.

The hastily written initial order also, 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 U.S. Circuit Court of Appeals said in a ruling in early February that that wasn’t enough.

“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.

Criticism from groups that help refugees and immigrants was swift.

“This order is essentially religious discrimination masquerading, once again, in the language of national security. The order targets people from Muslim-majority countries and will sharply reduce resettlement of Muslim refugees,” Human Rights First’s Eleanor Acer said. “Legal wordsmithing cannot obscure the discriminatory intent and impact of the order. Not only does this order trample upon U.S. commitments to religious freedom, nondiscrimination and refugee protection, but former national security officials from both sides of the aisle agree that these kinds of bans make our nation less safe.

“The order does nothing to improve our national security and will have painful human consequences: It will separate families and leave tens of thousands of people – mostly women and children – exposed to grave danger and despair,” said Hans van de Weerd, chair of Refugee Council USA.

Michael Doyle of McClatchy’s Washington Bureau and Andy Furillo of The Sacramento Bee contributed to this article.

Franco Ordoñez: 202-383-6155, @francoordonez

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