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In the face of a stinging judicial rebuke of his Jan. 27 travel ban, President Donald Trump hit the reset button Monday, rolling out a new executive order that makes significant concessions to guard against future legal challenges.
In contrast to the high-profile unveiling of the original travel ban, Trump signed the new order behind close doors, issuing no statements to reporters. Instead, he dispatched three of his Cabinet members — Attorney General Jeff Sessions, Homeland Security Secretary John Kelly and Secretary of State Rex Tillerson — to vouch for it.
— Sean Spicer (@PressSec) March 6, 2017
“It is the president’s solemn duty to protect the American people, and, with this order, President Trump is exercising his authority to keep our people safe,” Tillerson said in a brief appearance at the Ronald Reagan Federal Building in Washington, D.C.
“Today’s executive order … will make America more secure and address long-overdue concerns about the security of our immigration system,” Kelly added. “We cannot risk the prospect of malevolent actors using our immigration system to take American lives.”
The new order came less than six weeks after Trump issued the original travel ban, which set off a firestorm of protests and triggered more than two dozen lawsuits across the country — including one filed in Hawaii.
On Feb. 3, acting on a request from Washington and Minnesota, U.S. District Court Judge James Robart issued a temporary restraining order to block key parts of the travel ban, a ruling that was later upheld by the 9th U.S. Circuit Court of Appeals.
Sessions said he’s confident that the new order won’t suffer the same fate.
“The Department of Justice believes that this executive order, just as the first executive order, is a lawful and proper exercise of presidential authority,” Sessions said.
When Trump issued the original travel ban on Jan. 27, it took effect immediately, causing chaos at airports and upending the lives of tens of thousands of travelers.
U.S. District Court Judge Leonie Brinkema, who issued a preliminary injunction against the travel ban in Virginia, took note of the tumultuous rollout: “It’s quite clear that … not all the thought went into it that should have gone into it. As a result, there has been chaos.”
In rejecting the Trump administration’s bid to reinstate the travel ban, the 9th Circuit’s three-judge panel ruled that the botched implementation amounted to a violation of “what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.”
In the new order, however, the Trump administration inserted a provision for a 10-day grace period, giving it enough time to iron out the kinks in implementation.
“You should not see any chaos, so to speak, or alleged chaos, at airports,” said a Homeland Security official, who spoke on the condition of anonymity in a conference call with reporters. “There aren’t going to be folks stopped tonight from coming into the country because of this executive order.”
But whether the grace period will be enough to satisfy the federal courts is unclear.
Hawaii Attorney General Doug Chin, who filed the state’s lawsuit against the travel ban, may argue that it’s far from adequate.
In the lawsuit, Chin argues that the Trump administration has to put more procedural protections in place.
“At the very least, those barred from the country or detained pursuant to the order should be given some individualized consideration of their circumstances,” Chin wrote.
Responding to a similar argument by Washington and Minnesota, the Trump administration counters that no such consideration is necessary.
“The due process clause does not require individualized notice and an opportunity to respond where, as here, the government acts through a valid categorical judgment,” Acting Solicitor General Noel Francisco wrote.
In the new order, Trump made a host of revisions to his original travel ban, which suspended the U.S. refugee program for 120 days, banned Syrian refugees indefinitely and barred citizens of seven Muslim-majority countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — from entering the United States for 90 days.
For one thing, the new order is narrowly tailored to apply only to visa applicants who have yet to travel to the U.S.
The revision will likely bolster the Trump administration’s legal footing by canceling out the allegation that the travel ban tramples on the rights of permanent legal residents, as well as those who already hold valid U.S. visas.
But the 9th Circuit suggested that the revision may not be enough, noting that “potential claims” could still be asserted by those with “a relationship with a U.S. resident or an institution that might have rights of its own to assert.”
A case in point is the claim of Ismail Elshikh, who joined Hawaii’s lawsuit as a co-plaintiff three weeks ago.
According to the lawsuit, Elshikh, a naturalized U.S. citizen who is the imam of the Muslim Association of Hawaii, has a Syrian mother-in-law who may be barred from visiting his family in Hawaii.
But Elshikh’s mother-in-law may qualify for a waiver that the new order grants, on a case-by-case basis, if “denying entry during the suspension period would cause undue hardship.”
The Trump administration identified nine categories of visitors who could qualify for the waiver — including those with a close family member who is a U.S. citizen or legal resident, as well as a young child or infant who needs urgent medical care in the U.S.
Still, the new order offers few specifics that spell out how qualified visitors could apply for the waiver.
The new order reduces the number of the banned countries from seven to six, removing Iraq from the original list, and no longer singles out Syrian refugees for an indefinite ban.
But the revision will likely do little to counter the allegation that the travel ban discriminates based on national origin by singling out six Muslim-majority countries.
In Hawaii’s lawsuit, Chin argues that the travel ban isn’t justified because it’s “wildly over- and under-inclusive.”
“It is over-inclusive because it ensnares countless students, tourists, businesspeople, refugees and other travelers lacking even the remotest connection to terrorism of any sort,” Chin wrote. “And it is under-inclusive because it would not have covered any of the perpetrators of the worst recent terrorist attacks on American soil.”
It didn’t help that, until Monday, the Trump administration offered little in the way of evidence that — as the 9th Circuit put it — “any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”
But the new order claims that the FBI is pursuing 300 terrorism-related investigations of those who were admitted to the U.S. as refugees.
Still, the Trump administration declined to say how many of the 300 investigations involve refugees from any of the banned countries.
And the new order doesn’t address the conclusion of an assessment by the Department of Homeland Security’s intelligence unit that questioned the premise of the travel ban.
The assessment found that the “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity,” given that people from 26 countries had been “inspired” to carry out attacks in the U.S. since the Syrian civil war began in 2011.
But the Homeland Security official pushed back against the assessment Monday, arguing that it was neither based on classified intelligence nor vetted by other agencies.
In the new order, Trump also removed a provision in the original travel ban that gave preferential treatment to the refugee claims of religious minorities.
The move is seen as purely strategic — to ward off the allegation that the travel ban is a thinly veiled “Muslim ban” that Trump promised on the campaign trail.
On Monday, the Trump administration categorically denied that the travel ban targets Muslims. “This is not a Muslim ban in any way, shape or form,” the Homeland Security official said.
Still, by singling out six Muslim-majority countries, the new order will likely trigger a fresh round of legal challenges.
In court, the Trump administration has argued that the travel ban wasn’t discriminatory because it applied to both Muslims and non-Muslims from the banned countries, and that Muslims from other countries aren’t targeted.
But, in an interview with NPR, Neal Katyal, who served as acting solicitor general under former President Barack Obama, pointed out that the law doesn’t work that way.
“Well, suppose I’m an employer and I have five Muslim employees and I fire one of them because of their faith. The fact that I didn’t fire the other four, it doesn’t mean that I’m not discriminating on the basis of religion,” said Katyal, whose law firm is working with Chin’s office on Hawaii’s lawsuit.
The Trump administration will also likely have to reconcile past statements made by Trump and his aides, including former New York Mayor Rudy Giuliani, that critics have held up as evidence of discriminatory intent.
In its ruling, the 9th Circuit wrote that, in assessing the motive of a government action, such statements could be taken into account: “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating establishment and equal protection clause claims.”
For her part, Judge Brinkema ruled that Virginia was likely to prevail in its claim of anti-Muslim discrimination, citing Trump’s past statements.
“The ‘Muslim Ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this memorandum opinion is being entered,” Brinkema wrote.
For the time being, the original travel ban is still in effect — but, as soon as the new order is implemented March 16, it’s set to be revoked.
Then it’ll be up to the federal courts to decide whether legal challenges to the new order will have to proceed separately — or whether they can be rolled into the existing lawsuits.
In a statement, Chin blasted the new order as “Muslim Ban 2.0” — a term that began trending on Twitter — but stopped short of saying whether he intends to take a new legal action.
Last week, Chin was in Washington, D.C., where he and other attorneys general met with Trump.
In an interview with Civil Beat, Chin said he believes that the travel ban is wrong, signaling that he is willing to challenge the new order.
“I feel very strongly about the immigration order,” Chin said. “I see a relationship with the kind of order that discriminates against people because of their national origin — we have a history in Hawaii that we just don’t want to repeat.”
If he does decide to challenge the new order, Chin will likely have no shortage of supporters who will cheer him on.
In a statement, U.S. Sen. Brian Schatz minced no words:
“This administration continues to use immigrants and refugees — those fleeing from violence — as scapegoats for global terrorism. This ‘updated’ Muslim ban is still a Muslim ban. It may be more carefully constructed, but it is still racist and counterproductive. It’s a violation of American values that only damages our national security.”
Meanwhile, U.S. Rep. Tulsi Gabbard tied her opposition to her crusade against the “regime-change wars”:
“True to our history and values as a nation, we have served as a place of refuge to the most vulnerable in the world. We should not be putting in place a blanket ban of refugees, especially when we have actively been fueling the counterproductive regime change wars that have caused them to flee their homes. These people would much rather stay in their homes and live in peace. That’s why we must address the cause of this refugee crisis and end the destructive U.S. policy of counterproductive regime-change wars, as we’ve seen most recently in Iraq, Libya, and now in Syria.”
Civil Beat reporter Kirstin Downey contributed to this report.