Immigration

New Travel Ban Can't Stop Talking About the First

Trump's second executive order goes out of its way to argue with the courts that blocked the initial one. And that may doom it.

Cue up the protests again.

Photographer: Michael Nagle/Bloomberg

Are there do-overs in the White House? That’s the question that will determine the fate of President Donald Trump’s new and improved executive order on immigration from six majority-Muslim countries. The state of Hawaii has filed suit challenging the order on essentially the same grounds that the federal courts used to block the first iteration. Whether the second order is similarly blocked depends on whether the court looks solely to the content of the new order or to the entire context of its birth.

Given that Trump’s theoretical motivation in issuing the new order is to block immigration without being overturned by the courts, the text of the new order is a bit surprising. If it had been written by a lawyer who wanted to maximize the chances of success in court, the order almost certainly would have ignored the legal wrangling that blocked the first order.

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Yet the new order, remarkably, reviews the contents of the first order -- and goes out of its way to argue with the federal courts that blocked it. Thus, most crucially, the new order says that the old one “did not provide a basis for discriminating for or against members of any particular religion.”

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The provision of the old order that was most discriminatory was the one that prioritized admission of members of minority religions from majority-Muslim countries. The notion that this was intended to give Christians an advantage over Muslims wasn’t just made up. It followed from comments that Trump made to the Christian Broadcasting Network. As CBN put it, “President Donald Trump says persecuted Christians will be given priority when it comes to applying for refugee status in the United States.” 1

The new order walks back that interpretation of the old one, insisting that the prioritization of minority religions “applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion.”

The former claim is doubtful, because the seven countries covered by the original order were majority-Muslim. The second claim is legally plausible, if you interpret “minority religion” to include denominational differences. This interpretation was indeed urged in the aftermath of the order by refugee law expert Jill Goldenziel, who was trying to protect the possibility of some Muslims still being able to enter the U.S.

Finally, the new Trump order flatly asserts that the old one “was not motivated by animus toward any religion.” That’s the nub of the issue -- and it’s the problem the courts will now have to face.

The new order then states euphemistically that “the implementation” of the old one “has been delayed by litigation.” It goes on to promulgate a new approach that excludes green-card holders and others who hold valid visas. It drops Iraq from the original list of seven countries.  It allows 10 days for implementation so that no one is likely to be stuck at the airport.

Critically, the new order omits the preference for religious minorities. Despite the new order’s claim that the original didn’t intend to prioritize Christians, Trump’s advisers clearly think the order has a better chance of success without that provision.

If this second order had been issued in the first place, it’s overwhelmingly likely that it would have survived judicial review. Similarly, if a court were to ignore the context in which the revisions were adopted, the new order would probably pass muster.

The problem is that if the original order was motivated by religious animus, then redrafting to make it sound less constitutionally offensive doesn’t necessarily change the underlying motivation.

Think of Rudy Giuliani’s description of what he called the “whole history” of the first order. After Trump expressed his desire for a “Muslim ban,” Giuliani, the former New York mayor and a supporter of the president, said, “He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’” Then “what we did was we focused on, instead of religion, danger,” Giuliani explained.

This account, which frankly emphasizes the first order’s anti-Muslim intent, could be applied to the second executive order. The second order by its own account attempts to achieve legally what the first order failed to accomplish because of the pesky litigation delays created by judges applying the Constitution.

As a matter of constitutional doctrine, courts can and indeed should consider the overall circumstances of enactment when they investigate the motivation behind the order.

The Trump administration would like its new order to be treated like it would be in football, where a down is replayed after a penalty. But it may discover that the judicial review is more like golf, as explained by Sam Snead to Ted Williams. Golf is harder than baseball, the one great told the other: “You don't have to go up in the stands and play your foul balls. I do.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. Here’s the rest of the quote: “‘We are going to help them,’ President Trump tells CBN News. ‘They’ve been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair.’”

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net

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