New U.S. travel ban on the way

Trump plans re­write in­stead of le­gal fight over first or­der

Northwest Arkansas Democrat-Gazette - - FRONT PAGE - In­for­ma­tion for this ar­ti­cle was contributed by Sudhin Thanawala and Martha Bel­lisle of The As­so­ci­ated Press; by Matt Zapo­to­sky of The Wash­ing­ton Post; and by Jen­nifer Ep­stein and Kar­tikay Mehro­tra of Bloomberg News.

SAN FRAN­CISCO — Pres­i­dent Don­ald Trump’s ad­min­is­tra­tion said Thurs­day in court doc­u­ments that it wants a pause in the le­gal fight over its ban on trav­el­ers from seven pre­dom­i­nantly Mus­lim na­tions so it can is­sue a re­place­ment ban as it strives to pro­tect the na­tion from ter­ror­ism.

De­tails of the new pro­posal were not pro­vided in the fil­ing or at a wide-rang­ing news con­fer­ence by Trump. But lawyers for the ad­min­is­tra­tion said in the fil­ing that a ban that fo­cuses solely on for­eign­ers who have never en­tered the U.S. — in­stead of green-card hold­ers al­ready in the U.S. or who have trav­eled abroad and want to re­turn — would pose no le­gal dif­fi­cul­ties.

“In so do­ing, the pres­i­dent will clear the way for im­me­di­ately pro­tect­ing the coun­try rather than pur­su­ing

fur­ther, po­ten­tially time-con­sum­ing lit­i­ga­tion,” the fil­ing said.

Trump said at the news con­fer­ence that a new or­der would be is­sued next week.

“I will not back down from de­fend­ing our coun­try. I got elected on de­fense of our coun­try,” he said.

Trump said the new or­der would “com­pre­hen­sively pro­tect our coun­try,” and he hinted that it might con­tain new vet­ting mea­sures for trav­el­ers. Trump’s first or­der tem­po­rar­ily barred refugees and cit­i­zens of seven Mus­lim-ma­jor­ity coun­tries from en­ter­ing the U.S., os­ten­si­bly so of­fi­cials could re­view and tighten screen­ing pro­ce­dures.

“Ex­treme vet­ting will be put in place, and it al­ready is in place in many places,” Trump said. He said the ad­min­is­tra­tion “had to go quicker than we thought” be­cause a fed­eral ap­peals court re­fused to lift the sus­pen­sion on his travel ban.

“The new or­der is go­ing to be very much tai­lored to what I con­sider a very, very bad de­ci­sion,” Trump said Thurs­day at a White House news con­fer­ence. “We can tai­lor the or­der to the de­ci­sion to get just as much.”

Trump in­sisted that “the roll­out was per­fect” for his Jan. 27 ex­ec­u­tive or­der even though there was con­fu­sion and chaos at air­ports and bor­der cross­ings as hun­dreds of im­mi­grants and trav­el­ers, in­clud­ing at least one trans­la­tor who worked with the U.S. mil­i­tary in Iraq, were de­tained or de­layed in be­ing ad­mit­ted to the coun­try. About 60,000 peo­ple had visas pro­vi­sion­ally re­voked. Home­land Se­cu­rity Sec­re­tary John Kelly told a con­gres­sional panel that im­ple­men­ta­tion should have been de­layed un­til the de­tails were worked out.

Trump met Tues­day with Kelly and At­tor­ney Gen­eral Jeff Ses­sions to re­view op­tions for a re­vised ex­ec­u­tive or­der.

Trump also said Thurs­day that he is strug­gling with what to do about peo­ple who were brought to the U.S. il­le­gally as chil­dren. A pro­gram ini­ti­ated by Pres­i­dent Barack Obama called De­ferred Ac­tion on Child­hood Ar­rivals pro­vides work per­mits to those peo­ple, and Trump has sug­gested pre­vi­ously that he is con­sid­er­ing leav­ing it in place.

“DACA is a very, very dif­fi­cult sub­ject for me, I will tell you,” Trump said. “In some cases you have some ab­so­lutely in­cred­i­ble kids. I would say mostly.”

“We’re go­ing to deal with DACA with heart,” he said.

STATE AG COM­MENTS

The ad­min­is­tra­tion asked the 9th U.S. Cir­cuit Court of Ap­peals to hold off on mak­ing any more de­ci­sions re­lated to the travel ban law­suit filed by Wash­ing­ton state and Min­nesota un­til the new or­der is is­sued and then toss out the de­ci­sion keep­ing the ban on hold.

Wash­ing­ton state At­tor­ney Gen­eral Bob Fer­gu­son said the fed­eral gov­ern­ment was “con­ced­ing de­feat” by say­ing it does not want a larger ap­pel­late panel to re­view the de­ci­sion made last week by a three-judge panel of the 9th Cir­cuit. The judges re­jected the Trump ad­min­is­tra­tion’s claim of pres­i­den­tial au­thor­ity and ques­tioned its mo­tives in or­der­ing the ban.

The ad­min­is­tra­tion crit­i­cized the de­ci­sion in Thurs­day’s court fil­ing, say­ing the panel wrongly sug­gested some for­eign­ers were en­ti­tled to con­sti­tu­tional pro­tec­tions and that courts could con­sider Trump’s cam­paign state­ments about a ban.

The law­suit says the ban un­con­sti­tu­tion­ally blocked en­try to the U.S. on the ba­sis of reli­gion and harmed res­i­dents, uni­ver­si­ties and salestax rev­enue in the two states. Eigh­teen other states, in­clud­ing Cal­i­for­nia and New York, sup­ported the chal­lenge.

The ap­peals court had asked the Trump ad­min­is­tra­tion and Wash­ing­ton and Min­nesota to file ar­gu­ments by Thurs­day on whether a larger panel of 9th Cir­cuit judges should re­hear the case.

In his fil­ing with the 9th Cir­cuit, Wash­ing­ton state Solic­i­tor Gen­eral Noah Pur­cell said the rul­ing by the three­judge panel was consistent with pre­vi­ous U.S. Supreme Court de­ci­sions, so there was no ba­sis for a re­view.

Pur­cell said Trump had cam­paigned on the prom­ise to ban Mus­lims from en­ter­ing the U.S. and one week into of­fice is­sued the or­der that “rad­i­cally changed im­mi­gra­tion pol­icy” and “un­leashed chaos around the world.”

The three-judge panel said the states had raised “se­ri­ous” al­le­ga­tions that the ban tar­gets Mus­lims, and the courts could

con­sider state­ments Trump had made about shut­ting down Mus­lim im­mi­gra­tion.

The judges also re­jected the fed­eral gov­ern­ment’s ar­gu­ment that courts do not have the au­thor­ity to re­view the pres­i­dent’s im­mi­gra­tion and na­tional se­cu­rity de­ci­sions.

They said the Trump ad­min­is­tra­tion pre­sented no ev­i­dence that any for­eigner from the seven coun­tries — Iran, Iraq, Libya, So­ma­lia, Su­dan, Syria and Ye­men — was re­spon­si­ble for a ter­ror­ist at­tack in the U.S.

The ques­tion for plain­tiffs and courts after a new or­der is is­sued will be whether it makes ex­ist­ing lit­i­ga­tion moot. Some ex­perts con­tend the gov­ern­ment’s in­tent to pro­hibit Mus­lims from en­ter­ing the coun­try is too ob­vi­ous to be ig­nored by the courts.

Lee Gel­ernt, the deputy di­rec­tor of the Amer­i­can Civil Lib­er­ties Union’s na­tional Im­mi­grants’ Rights Project who is in­volved in an­other le­gal chal­lenge to Trump’s or­der in fed­eral court in New York, said it was dif­fi­cult to as­sess a new or­der with­out see­ing it, “but I think any type of ban is go­ing to be legally prob­lem­atic, and I also don’t think that the taint of re­li­gious dis­crim­i­na­tion is go­ing to go away.”

“I’m not sure a re­vised travel ban can cor­rect the prob­lems,” said Dina Haynes, the di­rec­tor of the hu­man-rights and im­mi­gra­tion law project at New Eng­land School of Law in Bos­ton.

“There’s enough ev­i­dence out there al­ready, re­gard­less of what the new ex­ec­u­tive or­der says, to sug­gest that the in­tent was based on a pro­tec­tive ground of bias that would im­pugn most as­pects of the ban.”

The pres­i­dent has broad au­thor­ity to set im­mi­gra­tion pol­icy, but fed­eral judges across the coun­try have ruled against Trump’s par­tic­u­lar travel ban. This week, a fed­eral judge in Virginia handed down per­haps the most sting­ing re­buke of the ex­ec­u­tive or­der, declar­ing that there was ev­i­dence that it was mo­ti­vated not by na­tional se­cu­rity con­cerns but in­stead by “re­li­gious prej­u­dice” to­ward Mus­lims.

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