Noah Feldman, Columnist

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.

March 9, 2017 at 7:31 PM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Cue up the protests again.
Photographer: Michael Nagle/Bloomberg

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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.