Trump read­ies a re­vamped ex­ec­u­tive or­der to re­place his stalled travel ban

The Washington Post - - NEWS - BY MATT ZAPO­TO­SKY

Pres­i­dent Trump said Thurs­day that he will is­sue a new ex­ec­u­tive or­der on im­mi­gra­tion by next week, and Jus­tice Depart­ment lawyers asked a fed­eral ap­peals court to hold off on tak­ing ac­tion in the le­gal bat­tle over his ini­tial travel ban un­til that new or­der is in place.

In a news con­fer­ence at the White House, 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 cit­i­zens of seven Mus­lim­ma­jor­ity coun­tries and refugees from en­ter­ing the United States, 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 pres­i­dent’s com­ments and the Jus­tice Depart­ment’s re­quest to the U.S. Court of Ap­peals for the 9th Cir­cuit mean that the ad­min­is­tra­tion — at least for now — is pump­ing the brakes on the fu­ri­ous court bat­tle to re­store the travel ban. In­stead, the ad­min­is­tra­tion in­di­cated in its fil­ing that it ex­pects that a re­vamped ex­ec­u­tive or­der will elim­i­nate judges’ con­cerns, even those the Jus­tice Depart­ment views as un­founded. The 9th Cir­cuit agreed late Thurs­day to wait un­til a new or­der was is­sued to po­ten­tially re­con­sider the mat­ter be­fore a larger group of judges.

Wash­ing­ton state At­tor­ney Gen­eral Bob Ferguson, who had suc­cess­fully sued to block the travel ban, wrote on Twit­ter that the Jus­tice Depart­ment fil­ing, in par­tic­u­lar, “rec­og­nizes the ob­vi­ous — the Pres­i­dent’s cur­rent Exec Or­der vi­o­lates the Con­sti­tu­tion.”

The le­gal wran­gling, though, is far from over, and even a new ex­ec­u­tive or­der will not nec­es­sar­ily end the need for it. What hap­pens next will largely de­pend on how sig­nif­i­cantly the rewrit­ten or­der departs from the orig­i­nal. Jus­tice Depart­ment lawyers wrote that the re­vi­sions would be mean­ing­ful.

“Rather than con­tin­u­ing this lit­i­ga­tion, 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 lawyers wrote. “In so do­ing, the Pres­i­dent will clear the way for im­me­di­ately pro­tect­ing the coun­try rather than pur­su­ing fur­ther, po­ten­tially time-con­sum­ing lit­i­ga­tion.”

Trump could make clear that his or­der no longer ap­plies to green-card hold­ers — who prob­a­bly have the strong­est case to sue — or he could craft an or­der that would af­fect only peo­ple who have not yet ap­plied for visas. But a three-judge panel with the U.S. Court of Ap­peals for the 9th Cir­cuit said even those mod­i­fi­ca­tions would not nec­es­sar­ily per­suade them to lift a sus­pen­sion of the ban, be­cause such changes would not help U.S. cit­i­zens who “have an in­ter­est in spe­cific nonci­t­i­zens’ abil­ity to travel to the United States.”

The orig­i­nal ex­ec­u­tive or­der, signed Jan. 27, barred refugees from en­ter­ing the coun­try for 120 days; cit­i­zens of Iran, Iraq, Libya, So­ma­lia, Su­dan and Ye­men for 90 days; and cit­i­zens of Syria in­def­i­nitely. A fed­eral judge in Seat­tle first or­dered the ban sus­pended Feb. 3, and the three-judge panel with the 9th Cir­cuit last week unan­i­mously re­jected the ad­min­is­tra­tion’s re­quest to undo that freeze. That left Jus­tice Depart­ment lawyers with two op­tions in the short run: rush im­me­di­ately to the Supreme Court, or ask the full 9th Cir­cuit to take up the mat­ter in what is known as a re­hear­ing “en banc.”

They had yet to make a choice when a judge on the 9th Cir­cuit asked the judges to take a vote on their own, and the cir­cuit’s chief judge asked the par­ties to file their po­si­tions on the mat­ter by Thurs­day.

The Jus­tice Depart­ment, rep­re­sent­ing the Trump ad­min­is­tra­tion, ar­gued in its fil­ing that the three-judge panel was wrong, but — given that a new ex­ec­u­tive or­der was com­ing any­way — the 9th Cir­cuit should hold off on tak­ing up the mat­ter en banc.

At is­sue has not been whether Trump’s ban is ul­ti­mately le­gal — al­though that has been part of the con­sid­er­a­tion. The judges have been asked to con­sider only whether na­tional se­cu­rity con­cerns ne­ces­si­tate an im­me­di­ate restora­tion of the travel ban, when weighed against the eco­nomic and other harms Wash­ing­ton and Min­nesota of­fi­cials say it is im­pos­ing on their states.

The pres­i­dent has broad au­thor­ity to set im­mi­gra­tion pol­icy, but fed­eral judges na­tion­wide 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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