Lawyers say they will challenge the new order, but observers suggest it has closed loopholes that led to its predecessor’s suspension.
The American Civil Liberties Union and others are already lining up to challenge President Donald Trump’s revised ban on refugees and travelers from six mainly Muslim countries. But can they succeed in overturning a measure that was deliberately crafted to remove the red flags raised by U.S. courts? That may be more difficult.
This time there is unlikely to be a backdrop of airport chaos and mass detentions to help lawyers make the case that people’s rights are being trampled. The White House has rolled out a process that aims to avoid a repeat of the confusion caused by its first travel ban, which was imposed with no notice and little preparation one week into Trump’s presidency.
The new order issued on Monday suspends U.S. entry for all refugees for 120 days, and the issuing of new visas for nationals of Syria, Iran, Libya, Somalia, Yemen and Sudan for 90 days. Although similar to the first travel ban, it has been changed in significant ways to pass muster with the courts.
For one, the new restrictions do not go into effect until March 16, giving travelers 10 days to prepare for the changes. Crucially, the new order exempts permanent U.S. residents and visa holders, and allows for waivers on a case-by-case basis. It also drops Iraq from the list of countries targeted by the visa ban.
The administration’s strategy appears designed to address the kind of situations that ignited public outrage and made the travel ban politically radioactive. There was the case of an Iranian baby who could not travel for specialized medical treatment in the United States. That could now be dealt with using a waiver.
Foreign students and Silicon Valley executives were stranded abroad, and entire families were detained at airports. As long as they have visas, they should no longer face that risk under the new rules.
Lawyers for the state of Hawaii on Tuesday informed courts there of their plan to file a challenge to the revised ban on Wednesday. If filed on Wednesday, it likely will be the first challenge to the tweaked ban. The federal judge who blocked the first ban was persuaded by the argument of two state attorneys general that it was causing “irreparable harm.” It is less clear those arguments would prevail the next time around.
“We are carefully reviewing the new executive order to determine its impacts on Washington state and our next legal steps,” Washington state Attorney General Bob Ferguson said on Monday. He said he was still concerned, but needed two or three days to decide on next steps.
Camille Mackler, director of legal initiatives at the New York Immigration Coalition, called Trump’s new order a “backdoor Muslim ban.”
“We still think it’s as problematic as the first travel ban,” she said. “It didn’t happen in a vacuum, it happened within the context of the comments that have been made before and since the election, this sort of broader war on immigrants that the Trump administration is fighting.”
The next wave of legal challenges will have to directly confront the question of whether the immigration order constitutes a Muslim ban, an issue that the courts have so far set aside. “While the White House may have made changes to the ban, the intent to discriminate against Muslims remains,” said New York Attorney General Eric Schneiderman.
Omar Jadwat, director of the ACLU’s Immigrant Rights Project, said Trump “has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people.”
The administration has tried to make it harder to prove religious discrimination by stripping out language that would have given preference to religious minorities once refugees are allowed in again. Critics had said the preference benefitting Christians underscored that the ban was directed at Muslims.
“I believe the new order will withstand legal challenges as it’s drafted in a fashion as to not be a religious ban, but a ban on individuals coming from compromised governments and failed states,” said Senator Lindsey Graham, a Republican who often criticizes the White House.
The Trump administration considers three of the nations targeted—Iran, Sudan and Syria—as state sponsors of terrorism, and the other three as “safe havens” for terror operatives. Its critics question the composition of the list, which includes countries whose citizens have never been involved in terror attacks in the United States. And they point to Trump’s own past campaign statements promising to bar entry to Muslims as evidence of animus that will be difficult to shake.
“The clear intent is to convince the courts that the ban is the result of careful deliberation rather than religious animus,” said Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program. “But the tactical tweaks in this latest edition cannot rescue the order’s constitutionality,” she said. “Underneath the softened rhetoric and other adjustments lies the same poisonous policy: an effort to restrict Muslims’ entry into the U.S.”