President Donald Trump plans to sign a new executive order on immigration, perhaps this week, rather than continue fighting court challenges to his Jan. 27 order closing U.S. borders to refugees and citizens of seven mostly Muslim countries. The new order, he said, will be tailored to address the objections of the judges who barred enforcement of the original one.
1. What are the revisions Trump might make?
The new order will exclude citizens of Iraq from the ban and go easier on Syrian refugees, according to a White House official. The first change is aimed at political objections to the original order, since Iraq’s inclusion threatened its cooperation with U.S. efforts to battle the terrorist group Islamic State. The original order barred citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S. for 90 days and refugees -- people fleeing their homelands claiming persecution or fear of violence -- for 120 days. Syrian refugees were barred indefinitely under the original order but would be included in the 120-day ban in the new order. Also, to address legal challenges, experts have suggested the order could be worded so that it clearly doesn’t apply to holders of green cards -- people who are legal permanent residents of the U.S. -- and people who already are legally in the U.S. on visas letting them in for work, study or other approved purposes.
2. But didn’t the administration exempt green-card holders?
Shortly after the first order was issued, causing chaos at airports in the U.S. and abroad, White House counsel Donald F. McGahn II said it didn’t bar green-card holders from reentering the U.S. after a trip outside the country. That didn’t satisfy an appeals court in San Francisco, which said in a unanimous ruling, "The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments."
3. Would the planned revisions answer the court’s objections?
Not all of them. The appeals court said the order also risked violating the rights of foreigners who have a connection with a U.S. resident or institution. The panel pointed to a 2015 U.S. Supreme Court decision that left open the possibility of U.S. citizens suing on behalf of non-American spouses trying to enter the country. The appeals court also said the Supreme Court has made it clear that everyone in the U.S., legally or not, is entitled to due process, or the right to fair procedures before being deprived of freedom or property.
4. How might a new order deal with that?
Legal scholars suggest Trump could include legal protections such as a hearing or a written appeals process for applicants denied refugee status or U.S. visas to answer claims that the original order fails to provide constitutionally-required due process.
5. Did the appeals court have other issues?
Yes. It faulted the administration for not giving an adequate explanation for why it singled out people from the seven nations. During the hearing, judges asked the administration’s lawyer for evidence that existing screening procedures for visitors and immigrants were insufficient to deal with terrorist threats and for proof that people admitted from the seven targeted countries had committed federal offenses in the U.S.
6. Have other judges had additional concerns?
Yes. A federal judge in Virginia focused on Trump’s past statements targeting Muslims. U.S. District Judge Leonie Brinkema said on Feb. 13 that she gave little weight to the administration’s assurances that it wasn’t doing that, considering Trump had in 2015 called for a "total and complete shutdown of Muslims entering the U.S." Such comments raise concerns that the order violates the Constitution’s Establishment Clause, which forbids the government from favoring one religion over another, and the Equal Protection Clause, which prevents discrimination against people based on their religion. The administration has argued that the order should be judged on its own, but the appeals panel said that "evidence of purpose beyond the face of the challenged law" can be used to determine its lawfulness.
7. How might a new order address those concerns?
The administration could provide evidence showing the ban is intended to address a real danger of terrorism rather than targeting Muslims. It could drop a provision prioritizing future refugee claims made by individuals belonging to minority religions -- a clause that could be interpreted to privilege claims made by Christians from Muslim-majority countries.
8. Would a new order be challenged?
Certainly. Almost everyone agrees that no matter what the content of a new immigration order, opponents will continue to sue to try to block it from being put in place.
The Reference Shelf
- The text of Trump’s executive order, and the Ninth Circuit’s ruling.
- A graphic showing which countries are subject to the bans.
- A QuickTake explainer on refugees and political asylum.
- A QuickTake explainer on Trump’s immigration ban and the legal fight over it.
- Trump’s ban is an attack on religious liberty, writes Bloomberg View columnist Noah Feldman.
- Harvard, Yale and Stanford seeking to overturn immigration ban.
- A profile of the first judge to block Trump’s order.
- Trump’s and Giuliani’s Fox News comments haunt them in court.
— With assistance by Kartikay Mehrotra