What New Travel Ban Means for Legal Battle: QuickTake Q&ABy
President Donald Trump signed a new executive order on immigration March 6, rather than continue fighting court challenges to his Jan. 27 order closing U.S. borders to refugees and citizens of seven mostly Muslim countries. He had said the new order would be tailored to address the objections of the judges who barred enforcement of the original one. The revised order affects fewer people and so narrows the pool of litigants who can challenge it in court. Still, it will almost certainly face continued lawsuits.
1. What revisions did Trump make?
The new order excludes Iraq from the list of countries -- Iran, Libya, Somalia, Sudan, Syria and Yemen -- whose citizens are barred from entering the U.S. for 90 days. Like the old order, the new one prohibits entry to all refugees -- people fleeing their homelands claiming persecution or fear of violence -- for 120 days, but Syrian refugees are no longer barred indefinitely. 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 new order clearly exempts holders of green cards -- people who are legal permanent residents of the U.S.; people who acquire permits to travel to the U.S. on or after the date of the order; those granted asylum in the U.S. before the effective date of the order; and people who already are legally in the U.S. on visas letting them in for work, study or other approved purposes.
2. Didn’t the first order also exempt green-card holders?
Not at first, and not clearly. 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. Does anybody have legal standing to challenge the new order?
Possibly. Generally, the U.S. Constitution is interpreted to cover American citizens and people physically in the U.S. That limits the field of possible plaintiffs who can challenge the Trump order on constitutional grounds. However, the appeals court said Trump’s original order risked violating 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 that a U.S. citizen could sue on behalf of a non-American spouse trying to enter the country. The appeals court that weighed Trump’s initial order 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. What court objections do the revisions target?
The appeals court faulted the Trump administration for not giving an adequate explanation for why it singled out people from the targeted nations. 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 targeted countries had committed federal offenses in the U.S. The new order details each of the six countries’ connections to terrorism. It states that two Iraqi refugees and one Somali refugee were convicted of recent terrorism-related crimes in the U.S., and that more than 300 refugees are currently the subject of FBI counter-terrorism investigations.
5. What court objections might still pose a problem?
A federal judge in Virginia who heard a challenge to the original order didn’t buy the administration’s assurance that it’s not looking to ban Muslims, since Trump 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 argued that its order should be judged on its own, apart from Trump’s past statements, but the appeals panel said that "evidence of purpose beyond the face of the challenged law" can be used to determine its lawfulness.
6. How does the new order address those concerns?
Apart from providing details on the terrorist links of the targeted countries, the order drops a provision prioritizing future refugee claims made by individuals belonging to minority religions -- a clause from the original order that some interpreted to favor claims made by Christians from Muslim-majority countries.
7. Will the new order be challenged?
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 revised and original executive order, and the Ninth Circuit’s ruling.
- A White House Q&A about the new order.
- A graphic showing countries subject to the bans.
- A QuickTake explainer on refugees and political asylum.
- Trump’s ban is an attack on religious liberty, writes Bloomberg View columnist Noah Feldman.
- Harvard, Yale and Stanford seek 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