New travel ban to be ‘tai­lored’ to last in court

The pres­i­dent gives up on ap­peal­ing what he calls judges’ ‘very bad de­ci­sion’ block­ing his first such or­der.

Los Angeles Times - - FRONT PAGE - By Maura Dolan and Jaweed Kaleem

Faced with a string of le­gal de­feats across the coun­try, Pres­i­dent Trump on Thurs­day ef­fec­tively aban­doned ef­forts to up­hold his con­tro­ver­sial ban on travel from sev­eral coun­tries with links to ter­ror­ism and said he would is­sue a new or­der next week crafted to with­stand con­sti­tu­tional chal­lenges.

Only a week after Trump said “see you in court” to op­po­nents of the ban, ad­min­is­tra­tion lawyers sig­naled Thurs­day they would not pur­sue an ap­peal of a fed­eral court rul­ing block­ing en­force­ment of the ban, which Trump said would be re­placed with a new or­der “tai­lored” to over­come the court’s le­gal reser­va­tions.

“As far as the new or­der, the new or­der is go­ing to be very much tai­lored to what I con­sider to be a very bad de­ci­sion,” Trump said of the ap­peals court rul­ing that blocked en­force­ment of the Jan. 27 ex­ec­u­tive or­der block­ing most travel from seven pre­dom­i­nantly Mus­lim coun­tries, as well as new refugee re­set­tle­ment.

The ban pre­vented cit­i­zens of Iran, Iraq, Libya, So­ma­lia, Su­dan, Syria and Ye­men from en­ter­ing the U.S. for 90 days, blocked refugees for 120 days, in­def­i­nitely sus­pended ad­mit­tance of Syr­ian refugees and gave pref­er­ence for refugees who were mem­bers of re­li­gious mi­nori­ties that are per­se­cuted in their home coun­tries.

Le­gal an­a­lysts and some of those who chal­lenged the ban called Trump’s de­ci­sion a ma­jor con­ces­sion of de­feat.

Trump did not spec­ify what would be in the new ex­ec­u­tive or­der. To sur­vive fu­ture court chal­lenges, it prob­a­bly would have to ex­clude those who have been liv­ing in the coun­try with green cards and visas and fo­cus on those who have never been to the U.S. and might have some link to ter­ror­ism, ex­perts said.

White House of­fi­cials al­ready have in­di­cated that a new or­der would most likely

be de­signed to have no im­pact on cur­rent hold­ers of U.S. visas, mean­ing peo­ple with green cards or stu­dent or work-re­lated visas would be able to travel without ad­di­tional re­stric­tions.

A three-judge panel of the U.S. 9th Cir­cuit Court of Ap­peals unan­i­mously de­cided on Feb. 9 to up­hold a na­tion­wide block on en­force­ment of the ban after con­clud­ing it was likely to vi­o­late the Con­sti­tu­tion.

Trump down­played the chaos that erupted at air­ports around the world after the ban, as work­ers, stu­dents, peo­ple try­ing to visit fam­i­lies in the U.S. and oth­ers with valid visas were de­nied per­mis­sion to board planes or turned away after ar­riv­ing in the U.S.

State Depart­ment of­fi­cials said an es­ti­mated 60,000 visas were can­celed, but Trump blamed much of the tur­moil at U.S. air­ports on a Delta Air­lines com­puter out­age, which oc­curred after peo­ple were al­ready de­tained at air­ports and while protests were un­der­way.

“We had a very smooth roll­out of the travel ban. But we had a bad court. Got a bad de­ci­sion,” he said.

Given the plans for the new ex­ec­u­tive or­der, Trump ad­min­is­tra­tion of­fi­cials said they would not pur­sue an ap­peal of the 9th Cir­cuit’s hold on the cur­rent ban.

“Rather than con­tin­u­ing this lit­i­ga­tion,” the ad­min­is­tra­tion said in writ­ten ar­gu­ments, “the pres­i­dent in­tends in the near fu­ture to re­scind the or­der and re­place it with a new, sub­stan­tially re­vised ex­ec­u­tive or­der to elim­i­nate what the panel er­ro­neously thought were con­sti­tu­tional con­cerns.”

The 9th Cir­cuit’s ac­tive judges had been ex­pected to vote on whether to re­con­sider last week’s de­ci­sion to con­tinue block­ing the ban after the close of brief­ing Thurs­day. An­a­lysts an­tic­i­pated that a ma­jor­ity of the court’s judges would vote against re­con­sid­er­a­tion.

The three-judge panel — two Demo­cratic ap­pointees and one ap­pointed by a Repub­li­can — re­fused to lift the na­tion­wide hold on the ban in a case brought by the states of Washington and Min­nesota. The panel said the ban was likely to vi­o­late the due process clause of the 5th Amend­ment be­cause it re­stricted travel without no­tice or a hear­ing.

On Mon­day, a fed­eral judge in Vir­ginia halted en­force­ment of the ban in that state based on ev­i­dence the or­der was mo­ti­vated by an­i­mus to Mus­lims in vi­o­la­tion of the Con­sti­tu­tion’s es­tab­lish­ment clause.

The rul­ings came amid dozens of court chal­lenges against the ad­min­is­tra­tion around the na­tion since the travel re­stric­tions went into ef­fect. Trump has suf­fered ini­tial loses in many of them.

Washington state Atty. Gen. Bob Fer­gu­son, whose of­fice wrote le­gal ar­gu­ments against the ban, said Thurs­day on Twit­ter that Trump was “con­ced­ing de­feat.”

Fer­gu­son, in an in­ter­view ear­lier this week on ABC, also said the state would con­sider fight­ing any new ex­ec­u­tive or­der.

“We’ll fight if what­ever they come up with vi­o­lates the Con­sti­tu­tion and is un­law­ful, which the cur­rent ex­ec­u­tive or­der most cer­tainly is,” Fer­gu­son said.

UC Berke­ley law pro­fes­sor John Yoo, who served in the Ge­orge W. Bush ad­min­is­tra­tion, said a new or­der could avoid rais­ing con­cerns of re­li­gious bias by fo­cus­ing on po­ten­tially prob­lem­atic in­di­vid­u­als rather than on pre­dom­i­nantly Mus­lim na­tions. He said Trump could or­der ad­di­tional se­cu­rity checks for peo­ple who in­tel­li­gence agents and law en­force­ment of­fi­cials be­lieve are po­ten­tial threats

An or­der that ex­cluded green-card hold­ers and peo­ple with visas who al­ready have been to the United States also would be dif­fi­cult to chal­lenge le­gally, Yoo said.

“Then the only peo­ple harmed by the or­der would be out­side the U.S., and the Supreme Court has said peo­ple out­side the coun­try don’t have con­sti­tu­tional rights,” said Yoo, who helped write a memo jus­ti­fy­ing tor­ture for ter­ror­ism sus­pects dur­ing the Bush ad­min­is­tra­tion.

“The class of peo­ple who would be harmed are not the peo­ple who have le­gal rights to sue,” he said.

Pep­per­dine Univer­sity law pro­fes­sor Dou­glas Kmiec called the de­ci­sion to is­sue a new di­rec­tive “an ad­mis­sion that the first or­der was drafted with less than am­ple care.”

For an or­der to sur­vive in court, Kmiec said, the ad­min­is­tra­tion would have to ex­clude for­eign na­tion­als who are al­ready liv­ing and work­ing in the coun­try. “And they would be wise to delete an at­tempt to give a Chris­tian pref­er­ence” for refugees, he said.

The de­ci­sion to craft a new or­der was a “les­son” that ex­ec­u­tive power is “not a blank check,” Kmiec added. Trump “doesn’t get to do what he wants,” he said, without court scru­tiny.

In ad­di­tion to its 9th Cir­cuit fil­ing Thurs­day, the Trump ad­min­is­tra­tion asked a fed­eral dis­trict court in Washington, D.C., that is con­sid­er­ing the ban to sus­pend dead­lines for ar­gu­ments pend­ing a new ex­ec­u­tive or­der.

Margo Sch­langer, a law pro­fes­sor at the Univer­sity of Michi­gan, said Trump’s best chance at sur­viv­ing court chal­lenges against a new or­der would be to make it ap­ply to fewer peo­ple. It should ex­empt per­ma­nent res­i­dents and those here on stu­dent and work visas, she said.

“If those peo­ple were left off the ban al­to­gether, or if the ad­min­is­tra­tion set up some kind of process for their ad­di­tional vet­ting, rather than ban­ning their travel, the lit­i­ga­tion would be quite dif­fer­ent,” said Sch­langer, who was the head of civil rights for the Depart­ment of Home­land Se­cu­rity un­der Pres­i­dent Obama.

Still, she said, even an or­der nar­rowed that way prob­a­bly would still be vul­ner­a­ble to court chal­lenges.

“Ev­i­dence of anti-Mus­lim bias will not be so easy to wipe away,” she said.

Some crit­ics of the or­der said they could not imag­ine how Trump could ac­com­plish his ob­jec­tives le­gally.

“We’re skep­ti­cal that any rewrit­ing of the or­der will ad­dress the ba­sic hu­man rights is­sues it raises, given Trump’s re­peated as­ser­tions of dis­crim­i­nat­ing against Mus­lims,” said Robyn Shep­herd, a spokes­woman for Amnesty In­ter­na­tional USA.

The 9th Cir­cuit had been sched­uled to con­sider a re­hear­ing of its rul­ing last week after an uniden­ti­fied judge on the ap­peals court asked to have the rul­ing re­viewed by an 11-mem­ber panel — an ac­tion that gen­er­ally oc­curs when a mem­ber of the court dis­agrees with a de­ci­sion and wants a speedy ap­peal.

Washington state and Min­nesota con­tended the travel ban was hurt­ing busi­ness and dis­rupt­ing pub­lic uni­ver­si­ties and ar­gued that it vi­o­lated con­sti­tu­tional guar­an­tees of due process and re­li­gious free­dom.

Brian van der Brug Los An­ge­les Times

HUN­DREDS BLOCK traf­fic at Los An­ge­les In­ter­na­tional Air­port on Jan. 29, two days after Pres­i­dent Trump’s travel ban sparked chaos at air­ports world­wide.

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