According to the Wall Street Journal, the Trump administration’s proposed revamp of its refugee and visa ban would make the ban easier to defend in court — but maybe not easy enough.
The executive order President Trump signed on January 27, temporarily banning all people from seven majority-Muslim countries and nearly all refugees from entering the United States, has been put on hold as judges around the country have questioned its constitutionality and enjoined its implementation. In response, the administration is working on a new version of the executive order that could pass legal muster — which is expected to be unveiled next week.
A State Department memo discussing a draft of the new executive order has been seen by the Wall Street Journal, which reported on its contents Saturday night.
Per the Journal, the revised executive order would exempt US green card holders from the temporary ban.
It might also eliminate the provision of the original order that banned Syrian refugees from entering the US indefinitely (even after the 120-day global ban on refugees has ended). But the White House insisted to the Journal that the Syrian refugee ban would stay in place.
The revised order might fix the biggest flaw in the original — but it wouldn’t do as much as it could
The status of green card holders (around 500,000 of whom are from the seven blacklisted countries) was unclear in the original order — Department of Homeland Security analysts interpreted the order to exclude them, but the White House ordered that green card holders be banned as well. After several days of inconsistent “case-by-case” implementation, White House counsel Donald McGahn issued a clarification that allowed green card holders to enter the US. But federal judges haven’t taken McGahn’s guidance as definitive.
Different kinds of noncitizens have different degrees of constitutional rights to due process — and green card holders, who have been approved to live permanently in the US, have pretty extensive due process rights. So by categorically allowing green card holders to return to the US, the revised order would be harder to challenge as a violation of immigrants’ due process than the original was.
But it’s not clear that would be sufficient to make it past the courts.
Federal courts have implied that current visa holders in the US, even if they haven’t received permanent green cards, also have due process rights — and the Journal article implies that people currently in the US on visas would still be banned from leaving and returning.
Furthermore, the draft discussed in the State Department memo (per the Journal article) would not change the list of seven countries from which entries would be banned for 90 days.
The original blacklist — Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen — has been greeted with a lot of suspicion by judges for being arbitrary and unrelated to the actual risks of terrorism posed by members of various countries. It also might (depending on how you interpret the law) run afoul of an Immigration and Nationality Act provision banning discrimination on the basis of nationality in granting visas.
On Friday, the Guardian’s Spencer Ackerman reported that the revised executive order would provide more details about why those seven countries were chosen, but wouldn’t change the list. More details might satisfy the judges, or might not.
Ultimately, it’s not clear that it would be possible to judgeproof the ban by revising it after the fact.
At least some of the judges who’ve heard the case so far see the existing order as motivated by anti-Muslim animus — as a sloppy attempt to institute a “Muslim ban” in ambiguously neutral language. That could make the ban unconstitutionally discriminatory.
Their assessment appears to be grounded in statements then-candidate Trump made on the campaign trail, and a comment from key adviser Rudy Giuliani after the ban was signed. A revision of the ban might make it less sloppy, but it wouldn’t change that animus.
It’s genuinely an open constitutional question whether anti-Muslim animus is sufficient reason to strike down any version of a visa ban as unconstitutional. But some of the judges who’ve heard lawsuits on the existing ban believe it is. And the revisions the White House is considering don’t appear sufficient to appease them.