Sun Sentinel Palm Beach Edition
Critic slams new order as ‘Muslim Ban 2.0’
WASHINGTON — President Donald Trump’s new, revised travel ban retreats on nearly every issue that triggered chaos in airports and lawsuits in federal courts across the nation.
It will not apply to foreign students, engineers, tourists and relatives who are traveling to this country or temporarily traveling aboard. It is “prospective in nature — applying only to foreign nationals outside of the United States who do not have a valid visa,” said Homeland Security Secretary John Kelly.
But many critics of the first order were not declaring victory. Instead, they said they would go back to court and argue the order should still be struck down because it discriminates against Muslims.
“This is nothing more than Muslim Ban 2.0,” said Marielena Hincapie, executive director of the National Immigration Law Center in Los Angeles. “No amount of tweaks will change that.”
David Cole, the ACLU’s national legal director, said the revised order is “still religious discrimination in the pretextual guise of national security. And it’s still unconstitutional.”
But advocates for immigrants face at least three significant hurdles if they sue.
First, they must find plaintiffs who have standing to get into court. Usually, foreign citizens outside the country do not have standing to sue and claim a right to be admitted. The right to “due process of law” is limited to people who are within the country.
In the challenge to the original travel ban, the 9th Circuit Court of Appeals decided that the state of Washington may have “third party standing” to sue on behalf of professors and students who were barred from traveling.
But because the new order does not restrict foreign nationals who have been in this country “for a continuous period of work, study or other long-term activity,” that path into court may no longer be available.
Second, they need to show an immediate and “irreparable harm” from allowing Trump’s order from taking effect.
Judges may issue an order to temporarily block a government decree, but to get such an order, lawyers must show that not acting immediately will cause real harm. That is no doubt why Kelly emphasized the impact of the new order is “prospective,” not immediate.
Because the new order does not permanently block anyone from entering the country, but only imposes a 90-day freeze on giving out new visas, the standard of “irreparable harm” could be difficult to meet.
And third, they must overcome the president’s unusually broad powers to decide who may enter the country. Civil libertarians say that Trump’s order is based on religious bias, and they say it should be struck down for that reason.
Their case relies mostly on comments by Trump, rather than the order.
On Dec. 7, 2015, thencandidate Trump issued a news release calling “for a total and complete shutdown of Muslims entering the United States.”
On Jan. 29, two days after the new president signed the first travel ban, former New York Mayor Rudy Giuliani said Trump had called him about the proposed Muslim ban and said, “Show me the right way to do it legally.”
One federal judge, citing Trump’s comments, blocked his order on the grounds it may violate the First Amendment’s ban on an establishment of religion. It’s hard to ignore what Trump said prior to his election, said U.S. District Judge Leonie Brinkema.
To rebut a possible religious discrimination claim, Justice Department lawyers pushed to get language added to the new order that specifically said the previous version had not been “motivated by animus toward any religion.”