Revised order might still be iffy, legal analysts say

President Trump’s new version of a 90-day ban on U.S. entry from selected Muslim-majority countries has been stripped of some of its most legally vulnerable provisions, such as its application to legal U.S. residents and visa holders.

The new executive order also includes 10 days’ notice before it takes effect, allowing travelers to enter the United States if they’re already on the way. And, unlike Trump’s previous order, which federal courts have blocked, this one allows those who have been denied entry to apply for waivers on various hardship grounds.

Those changes address one of the chief judicial objections to the order that Trump issued on Jan. 27: that it excluded large numbers of foreign travelers

and refugees, previously approved for entry to the United States, without notice or an opportunity to be heard.

But a president’s authority over immigration, although extensive, is still limited by the Constitution. The survival of the revised decree that Trump issued Monday will likely depend on the courts’ assessment of whether his declared rationale, to protect the nation from terrorists, is a smokescreen for discrimination against Muslims.

As opponents noted in their lawsuits against the initial order, Trump as a presidential candidate called for a ban on Muslim immigration to the U.S. He declared when he signed the first order that the nation needed to defeat “radical Islamic terrorism.” The next day, former New York Mayor Rudy Giuliani, a Trump adviser, told an interviewer that the president had asked him to assemble a commission to draft a “Muslim ban” that would satisfy the courts.

Despite the new revisions, said Jayashri Srikantiah, a Stanford law professor and director of the school’s Immigrants’ Rights Clinic, “the executive order continues to target individuals from majority Muslim countries and nowhere else . ... The problem is the underlying motivation.”

Another Stanford law professor, Michael McConnell, had a different view. A 1972 Supreme Court ruling, he said, recognized far-reaching presidential authority over issues of foreign policy and national security and made the president’s motives irrelevant.

“It would be quite extraordinary, I think, for the judiciary to second-guess this order and say, ‘No, it’s unconstitutional because we suspect a bad motive,’ ” said McConnell, who was a federal appeals court judge from 2002 to 2009.

The six nations whose residents would be prohibited from entering the United States for 90 days are Iran, Libya, Somalia, Sudan, Syria and Yemen. The order that Trump issued Jan. 27 had included those six nations plus Iraq, but his revised order omits Iraq, whose forces are crucial to a U.S. campaign against Islamic State militants.

The new order also indicated that the travel ban, while temporary, could be lengthened for those countries and extended to other countries if “necessary for the security or welfare of the United States.”

Monday’s order, like the previous order, would impose a 120day ban on all U.S. admission of refugees, those fleeing violence or persecution in their homeland. The earlier order would have indefinitely suspended admission of refugees from war-torn Syria, but the new order would treat Syrian refugees like those from other nations.

The new order also dropped an earlier provision that would have given preference to refugees who were religious minorities. Trump told an interviewer from the Christian Broadcasting Network that the preference was intended for Christians in Muslim countries — a comment cited in lawsuits claiming antiMuslim bias.

Both the old and the new order would also reduce total refugee admissions from the 110,000 approved by then-President Barack Obama to 50,000 for the fiscal year that ends Sept. 30.

Monday’s order is scheduled to take effect March 16 and expressly revokes the original order on that date, contrary to recent statements by both Trump and Vice President Mike Pence that the administration would continue to defend the Jan. 27 order in court.

Trump said the revised order was crafted to meet the objections of a federal judge in Seattle and the Ninth U.S. Circuit Court of Appeals in San Francisco, whose rulings have blocked enforcement of the original order since Feb. 3.

Both rulings said Trump’s order likely violated the dueprocess rights of migrants and refugees who were denied entry without notice or a hearing, and raised questions about religious discrimination. In a later ruling, a federal judge in Virginia found strong evidence of anti-Muslim motivation.

The new order seeks to satisfy the due-process claims by exempting legal residents and visa holders, whose constitutional rights are well established, and allowing others from the targeted nations to seek a waiver from a U.S. consular official.

Waivers “may be appropriate,” government lawyers said in a court filing Monday, when a resident of one of the six nations has left the United States to work or study abroad, has “business or professional obligations” in the U.S., or wants to visit a close relative who is a U.S. citizen or legal resident.

Non-U.S. residents who lack visas have “a much weaker constitutional claim” than visa holders or legal residents, said Adam Winkler, a UCLA law professor. He said the change in categories was “essential for the ban to satisfy due process.”

But Bill Ong Hing, an immigration law professor at the University of San Francisco and founder of the Immigrant Legal Resource Center, said the ban exceeds the president’s legal authority by targeting countries instead of terrorist groups.

“By continuing to list nationals without current visas from these specific countries, the president is saying that the entry of all others from these countries (is) detrimental to the national interest,” Hing said. “That allegation is not true and factually impossible to prove.”

A 1952 federal law allows the president to exclude “classes” of foreigners who are “detrimental to the national interest.”

In defending the decision to target six predominantly Muslim countries, the executive order said Iran, Sudan and Syria had been classified by the United States as “state sponsors of terrorism,” and terrorist groups are participating in armed conflicts in Libya, Somalia and Yemen.

The order also noted that the six nations, along with Iraq, were singled out for increased scrutiny in a law signed last year by Obama. But Iraq’s absence from Monday’s order appears to weaken the government’s justification for targeting that group of nations, said Robert Chang, a University of Seattle law professor who has filed arguments supporting challenges to the earlier order.

Disputing arguments by the administration and its supporters that judges must defer to such presidential decisions, Chang said, “I don’t believe that the courts have granted that kind of absolute power to the executive, even in cases of national security.”

However, McConnell, the Stanford law professor and former appeals court judge, said Congress and the Supreme Court had given broad powers to the president to determine the national interest on such issues, “because of the nature of intelligence the president is privy to and the courts are not.”

“It’s not an issue for the court,” he said. “It’s a legitimate issue for political debate.”

But McConnell declined to predict the outcome. He said Trump has hurt his case by questioning the competence or impartiality of the courts that have ruled against him, including his reference to the “so-called judge” in Seattle who blocked the Jan. 27 order nationwide.

“It would be helpful if he doesn’t insult the judges next time,” McConnell said.