Revised travel ban gets day in court: Will it be found constitutional?
Finding the patterns
The revised executive order has more precision and legal rigor, experts say, but statements by administration officials on the ban’s intent may still be relevant. Judges on different sides of the country will hear arguments Wednesday.
—Update: A federal judge in Hawaii Wednesday issued an order blocking the revised ban, saying the plaintiffs have shown a "strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution."
It was only a matter of hours after President Trump signed his original executive order on immigration in January before a flurry of lawsuits emerged – challenges that ultimately stymied the implementation of one of his signature issues.
When he put his signature to a revised version of that order last week, it took several days before any new legal challenges were lodged.
This may be a sign, at least the Trump administration hopes, that the revised – and significantly narrowed – travel ban now has enough precision and legal rigor to withstand judicial scrutiny. On Wednesday, a pair of judges on different sides of the country will hear the first arguments to determine whether or not that’s the case – one day before it's due to take effect.
The administration “eliminated a lot of issues that allowed prior parties to [sue], and in my opinion they eliminated one of the constitutional problems with the prior executive order,” says Sarah Pierce, an analyst in the US Immigration Program at the Migration Policy Institute, an independent nonprofit think tank in Washington.
Several significant changes mean the new order has a much narrower scope than the first. They address head-on some of the flaws exposed in last month’s court battles. The first order – which temporarily suspended the admission of immigrants who are citizens of Syria, Iran, Iraq, Yemen, Libya, Sudan or Somalia – was widely criticized for being sloppily written, chaotically implemented, and potentially unconstitutional. Critics labeled it a “Muslim ban” based on Mr. Trump’s campaign promise to “ban all Muslims” from the country.
Legal permanent residents and current visa holders, who accounted for many of the plaintiffs in suits against the original travel ban, are explicitly excluded from the revised order. So are all immigrants from Iraq. The provision indefinitely suspending the admission of Syrian refugees was removed; they are now included in the blanket 120-day suspension of refugee admissions. A provision that gave priority admission to refugees of “a minority religion in the individual’s country of nationality” – which Trump himself promoted as support for Christian refugees – was also removed.
The revised order also provides more detailed reasoning for why the six countries in question are subject to the order – primarily their close links to terrorism and terror groups – and more detailed examples of which immigrants may qualify for exemptions from the order.
An injunction placed on the first order by a federal judge in Washington state applied to the section on refugees of a “minority religion” and three other sections of the order.
“Those sections have been substantially changed or removed altogether,” the Department of Justice wrote in a court filing. “The concerns relied upon by the states in bringing this action are no longer at issue.”
Some experts agree, including Jonathan Adler, a professor at Case Western University School of Law.
“It’s more specific, more nuanced, and it anticipates potential problems and addresses them more directly,” says Professor Adler.
“It exempts some of the folks that had the strongest legal claims against the initial one,” like permanent residents and current visa holders, he adds. “I think the real question is whether or not the courts will evaluate this independently of the first one.”
Indeed, the legal fate of the revised order may hinge on the weight that the courts – starting with federal judges in Maryland and Hawaii on Wednesday – give to the decisions, and as-yet unexamined questions, from litigation over the original travel ban.
The most relevant decision will be the ruling by a panel of three judges on the 9th Circuit Court of Appeals last month that upheld a temporary block on the first order’s implementation.
The ruling was justifiably narrow, given that the hearing was a preliminary one. While it was based on due process claims that may now be substantially weaker, some experts believe it may have set some important precedents.
For one, the 9th Circuit judges did not touch claims that the order carries an intent to discriminate against Muslims except to say the states “raise serious allegations and present significant constitutional questions.”
What the judges did say is that it’s “well established” that statements and context beyond the text of the order itself, which does not specifically mention Muslims, “may be considered in evaluating” the religious discrimination claims.
It’s unclear what statements may or may not be deemed relevant, but they could include Trump’s campaign promise for a “Muslim ban” and his surrogate Rudy Giuliani’s comments in an interview that Trump asked him to find a way to implement a Muslim ban legally by focusing “instead of religion, [on] danger.”
What may also become a factor is a draft Department of Homeland Security memo that, according to the Associated Press, reported that citizenship in a country is an “unlikely indicator” of terrorism threat. Comments last month from White House senior policy adviser Stephen Miller – that the revised order will have “the same basic policy outcomes” but will be “responsive to a lot of the very technical issues that were brought up by the court” – may also be deemed relevant.
Both the state of Hawaii and the coalition of civil rights groups that brought the Maryland suit cite the DHS memo and Mr. Miller’s comments in their briefs.
There’s no denying, however, that the Trump administration will have a much stronger case defending the revised ban compared with the original one.
The 9th Circuit based its ruling on an unusually broad interpretation of the Constitution’s due process protections – that even “unlawful, temporary, or permanent” immigrants have due process rights – and the people most effected by the prior order, including permanent residents and current visa holders, are “now groups of people largely excluded from the order,” Adler says.
There may also be a broader argument here: If a government has an action knocked back by the courts, it should have the ability to redraft it.
“We assume that if a government action is struck down, the government should be allowed to do it better, and that’s particularly true in an area like this where Congress has given the executive such broad discretion,” he says, citing policies around redistricting and university admission standards that are sometimes found to have discriminatory intent.
But the religious discrimination claim “isn’t addressed in the second executive order,” says Ms. Pierce, “so it will continue be an issue.”
“It’s still a travel ban for six countries that are Muslim-majority,” she adds, “and they are still going to have to deal in court with statements made by the Trump administration and the Trump campaign prior to issuing this order.”