Fixing Trump Executive Order’s Legal Problems Is No Easy Task

  • President may issue revised travel ban as early as Monday
  • Court faults order’s effect on people with right to be in U.S.

President Donald Trump could solve the most glaring problem a federal appeals court found with his travel ban by explicitly saying it doesn’t cover immigrants who already have a permanent right to live in the U.S.

But that wouldn’t fix everything.

A day after losing a 3-0 appeals court ruling on his effort to temporarily ban entry by people from seven mostly Muslim nations, Trump said he may issue a revised executive order. Trump told reporters Friday the changes would be "very little, just in honor of the decision" and could come as early as Monday.

Washington state Attorney General Bob Ferguson speaks on Feb. 9.

Photographer: Stephen Brashear/Getty Images

His comments came as his aides sent conflicting signals about whether Trump had dropped the idea of seeking immediate Supreme Court intervention.

A rewrite of the travel ban would almost certainly trigger a new round of legal challenges on a topic that has riveted the nation and sparked turmoil around the globe over the past two weeks. The White House will have to make a number of changes and even then won’t have any guarantee its new approach will survive legal challenges.

"It’s just an open question as to what courts might do with a new executive order," said Tara Grove, a constitutional law professor at William & Mary Law School.

QuickTake Q&A on Trump’s immigration ban and the legal fight over it

In refusing to reinstate the ban, the San Francisco-based appeals court said the current order might improperly affect legal permanent residents who want to leave the country and then return.

Although the administration now says those so-called green-card holders are exempt, the appeals court said it wasn’t confident the White House would stick to that approach, given the administration’s "shifting interpretations" of Trump’s Jan. 27 order.

"The best litigation strategy would be to craft a new executive order that was narrowly tailored and that left out legal permanent residents," said Danielle McLaughlin, a lawyer at Nixon Peabody and co-author of a book on the conservative legal movement.

The impact on green-card holders, however, was just one problem cited by the three judges in a lawsuit by Washington state and Minnesota. The court also said the executive order risked violating the rights of people who are already in the country with visas, as well as foreigners who have a connection with a U.S. resident or institution.

Non-American Spouses

The panel pointed to a 2015 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 a 2001 Supreme Court decision ensured that even people in the country illegally were protected by the Constitution’s due process clause.

During the court fight, the administration suggested the possibility of letting the travel ban take effect for everyone except green-card holders and other foreigners who are legally in the country. The panel said that revision didn’t go far enough.

Stephen Yale-Loehr, an immigration-law professor at Cornell University, said the administration needs to make clear that the only people barred from entry are those who don’t have prior connections to the country.

“If they don’t have any ties to the United States, the government would have a good argument that they don’t have any constitutional rights,” he said.

Seven Nations

Still, other problems lurk. The appeals court faulted the administration for not giving an adequate explanation of why it singled out people from the seven nations -- 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 court requires evidence that people from those countries not only were suspect or arrested for planning, but indeed perpetrated acts of terror,” Josh Blackman, a professor at South Texas College of Law in Houston, said in an e-mail.

Trump’s order shuts out citizens of the seven countries for 90 days and bars refugees from any country for 120 days. The government recommended that more than 1,200 people not be allowed on flights and revoked about 60,000 visas.

On Friday, a judge on the appeals court in San Francisco asked for full-court reconsideration of the three-judge panel’s refusal to reinstate Trump’s travel ban. Typically a rehearing will be granted when a majority of active judges on the court votes for it.

The appeals court left unresolved Minnesota and Washington’s claim that the original ban targets Muslims in violation of the Constitution’s religion and equal protection clauses. The appeals court called those "serious allegations" but said it didn’t need to rule on them.

‘Total and Complete Shutdown’

Trump said in December 2015 that he wanted "a total and complete shutdown of Muslims entering the United States." He modified his position later, telling reporters he would seek to restrict people from unspecified "terrorist countries" from entering the U.S.

That campaign statement could hurt Trump in court, as might remarks by former New York Mayor Rudy Giuliani, who said on Fox News last month that Trump was looking for a way to legally enact a Muslim ban.

“Those campaign statements and the Giuliani interview will be damaging," McLaughlin said. "It’s almost like the administration had been hamstrung before it was drafted because of what had already been said.”

The work on a new executive order doesn’t necessarily preclude Trump from seeking Supreme Court intervention on the one now stalled in court.

A White House aide said late Friday that the administration wouldn’t ask the Supreme Court to get involved. Soon after, reporters at the White House overheard Trump’s press secretary, Sean Spicer, asking who had made that statement. Minutes later, the aide distributed a paper statement that said the administration could still turn to the Supreme Court.

Embarrassing Defeat

Such a move would risk the possibility of an embarrassing defeat for the young administration. To reinstate the ban, Trump would have to persuade five of the eight justices -- including at least one of the court’s four Democratic appointees.

"I wouldn’t personally hold out much hope that the court would intervene under these circumstances," Carter Phillips, a Washington lawyer at Sidley Austin who has argued more than 120 Supreme Court cases, said on Bloomberg TV.

Phillips said the administration would stand a better chance at the Supreme Court after making changes to the travel ban.

"There are ways that this could be narrowed and fine-tuned that would give it substantially greater likelihood of being upheld," he said. "If it were me, that’s what I would do."

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