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.
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.