Retreat to a stronger legal position
Officials raise hurdles for critics who see religious bias in the travel ban
WASHINGTON — President Trump’s new 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 F. 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, national legal director for the American Civil Liberties Union, said the revised order was “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 U.S. 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 to take 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 that the effect 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. The Immigration and Nationality Act says the president “may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem appropriate.”
Government lawyers defending the first travel ban relied on this provision, but the 9th Circuit did not mention it in its 29-page opinion rebuking Trump.
Civil libertarians say that Trump’s order is based on religious bias and that it should be struck down for that reason.
Their case relies mostly on comments by Trump, rather than the text of the order.
On Dec. 7, 2015, then-candidate Trump issued a news release calling “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
On Jan. 29 this year, two days after the new president signed the first travel ban, former New York Mayor Rudolph W. 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 1st Amendment’s ban on an establishment of religion. It’s hard to ignore what Trump said before his election, said U.S. District Judge Leonie Brinkema.
“A person is not made brand-new simply by taking the oath of office,” she wrote on Feb. 13.
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.”
They also pushed for a detailed discussion in the new order of the terrorist threats posed by each of the six countries subject to a temporary travel ban. The new version also drops a preference for people from persecuted minority religious groups, which Trump in a television interview had suggested was designed to help Christians from the Mideast.
Administration officials say the revised order cannot be described as a “Muslim ban” because it extends to only six countries with Muslim majorities and does not include larger nations, such as Pakistan, Egypt, Indonesia and Saudi Arabia.