Legal Issues in the Trump Travel Ban Fight: QuickTake Scorecard

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Here's What's Different in Trump's New Travel Ban

President Donald Trump’s second attempt at a travel ban was temporarily blocked by judges in Maryland and Hawaii March 15, just hours before it was to take effect. The judge in Hawaii two weeks later extended the halt until a decision is made on a permanent injunction or a higher court overturns his ruling. Trump’s second directive, issued March 6, was intended to fix legal problems with his Jan. 27 order that tried to close U.S. borders to refugees and citizens of seven mostly Muslim countries. Trump had said the updated order would be tailored to address objections of judges who barred enforcement of the original one. While the revised order narrowed the field of battle between the government and critics of the policy, it remains vulnerable to claims that it targets Muslims and disfavors Islam in violation of the U.S. Constitution. Here are some of the legal issues involved in the fight over Trump’s travel bans.

1. Standing

Before anyone can get into federal court, they need standing -- a legally sufficient injury to their rights that allows them to sue. The second order eliminated Iraq from the list of countries whose citizens are barred from entering the U.S. for 90 days -- Iran, Libya, Somalia, Sudan, Syria and Yemen. Like the original order, the second 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. When Trump’s first order was issued, there were plenty of people who had clear claims that they had been harmed: green-card holders who feared they couldn’t come back home after traveling abroad and holders of visas who were taken into custody or sent back home by immigration agents. The second order 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. As a result, the administration knocked out lots of people with strong claims to standing. On the other hand, the appeals court that blocked Trump’s original order in February 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. States may also sue, claiming the travel ban hurts their economies, tourism and employers.

2. Presidential authority

The president has broad authority under immigration law to suspend any class of aliens whose entry would be “detrimental to the interests” of the U.S. Judges who have ruled against Trump say the president can’t issue immigration orders that violate the Constitution. The Trump administration appealed the Maryland ruling. The ultimate balance between the White House and the courts will likely have to be set by the U.S. Supreme Court.

3. Establishment of Religion/Equal Protection

States and individuals challenging the travel bans claim they’re an unconstitutional establishment of religion, by singling out Islam for official disfavor, and illegally target Muslims, in violation of their right to equal protection under the law. The new order eliminated some of the grounds for critics to challenge it. The directive dropped a provision that many claimed would give Christian refugees preference. These changes haven’t eliminated the religious discrimination claims.

4. Non-discriminatory purpose

The Trump administration argued both travel bans were intended to enhance U.S. security -- not discriminate against Muslims. The appeals court that blocked the first order faulted the Trump administration for not giving an adequate explanation for why it singled out people from the targeted nations. The second 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 the subject of FBI counter-terrorism investigations.

5. Can Trump’s words be used against him?

Opponents say remarks by Trump and his circle show their intent to discriminate against Muslims. Trump defenders claim the new immigration order should be considered on its own terms. The federal appeals panel that blocked the first order said that "evidence of purpose beyond the face of the challenged law" can be used to determine its lawfulness. Both judges who blocked Trump’s second order cited statements by him, by former New York Mayor Rudy Giuliani and White House staff. A Virginia judge quoted his 2015 call for a "total and complete shutdown of Muslims entering the U.S." U.S. District Judge Derrick Watson in Hawaii considered remarks by Trump and others and in issuing the extended ban, the judge wrote: “The court will not crawl into a corner, pull the shutters closed and pretend it has not seen what it has.” Trump had said the second order was a "watered-down version" of the original.

6. Is there a ‘Trump taint’?

The court rulings raise an interesting question: If courts believe Trump’s words show bias against Muslims, is it even possible for the president to issue an order on immigration affecting majority-Muslim countries without the taint of illegal discrimination? Josh Blackman, an associate professor at the South Texas College of Law, said that’s the implication of Watson’s ruling. "It is hard to see how his analysis would ever permit the executive branch to impose any immigration policy that has any effect on predominantly Muslim countries -- no matter how small," he said. Sam Erman, an assistant professor at USC Gould School of Law, disagreed. "Both times he’s done the travel ban, the reason he’s given for it doesn’t seem to make sense," said Erman. "If he were able to articulate a good reason for the ban and have a ban that seemed to match that reason, I think the courts would very quickly return to their deferential stand in this area."

The Reference Shelf

— With assistance by Kartikay Mehrotra

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