The first version of President Donald Trump’s refugee and visa ban — the one he signed on January 27, in place for only a week before federal courts put it on hold — was an ambitious disaster.
It attempted, literally overnight, to prevent people who had already bought plane tickets from entering America. It posed a substantial problem for people currently living in the US who might want to travel abroad. And it turned preference for “persecuted religious minorities” into a cornerstone of US refugee policy.
The latest version of the executive order, signed by Trump Monday, does none of those things. It all but admits that the administration overreached the first time, provoking a legal and political backlash that could have been avoided. What it offers, instead, is a much more narrowly tailored and thoughtfully considered version of the ban — one that’s much more likely to stand up in court.
The administration has done basically all it can to judgeproof the new executive order. It was a foregone conclusion that immigration advocates and Democratic prosecutors would sue to stop the 2.0 executive order just as they stopped the first one, but it’s a lot less clear that they’ll succeed this time around.
If Trump officials could only make everyone forget that the first version of the executive order existed at all, they’d be golden. Unfortunately for them, they can’t. Between the chaos of the first executive order and the internal tussles over the drafting of the second, “travel ban 2.0” is already associated in the public mind with its more aggressive predecessor. And federal judges may be similarly disinclined either to forgive or forget.
The new executive order is more consistent and streamlined — but the long-term effects are likely to be similar
The executive order President Trump signed on January 27 had two main parts. It set up a framework to make permanent changes to the way the US admitted visa holders and refugees from other countries: raising the standards for what information countries had to provide about their citizens who wished to come to the US, blacklisting countries that couldn’t provide that information, and halving the number of refugees that the US would admit in the next year.
While the government worked on those permanent changes, the executive order also set up temporary ones: a 90-day hold on admitting any national from seven majority-Muslim countries and a 120-day hold on admitting any refugees who weren’t “religious minorities” (or fit a couple of other exceptions). That’s the part of the ban that caused massive airport chaos and attracted the attention of the public and the courts.
The new version of the executive order Trump signed Monday leaves the long-term process to restrict visas and refugee admissions in place. But the temporary measures are much more limited.
The original executive order applied to people currently living in the US on visas from blacklisted countries — and even, in the early days of the policy, to green card holders. But the new order applies only to people who haven’t yet been issued visas. In theory, this ought to prevent the sort of chaos the initial executive order produced at airports in the US and around the world, because anyone boarding a plane to enter the US already has a visa.
The new version of the order also drops Iraq from the 90-day blacklist — reportedly at the behest of top defense officials including Secretary of Defense James Mattis.
As a result, starting on March 16, the federal government will no longer issue new visas to people from Iran, Libya, Somalia, Sudan, Syria, or Yemen. But the new order doesn’t restrict people from any other country from entering the US. And it doesn’t restrict people from those countries who’ve already received their visas.
The 120-day ban on refugees has been streamlined as well. The government will no longer allow members of persecuted religious minorities to settle in the US during the temporary refugee pause. On the other hand, the executive order no longer places an indefinite ban on admitting Syrian refugees — they’ll be allowed to enter the US after 120 days if they pass the screening mechanisms that will presumably be in place by that time, just like any other refugee.
For the refugees who are actually affected, this is cold comfort: “There is nothing ‘temporary’ about leaving innocent families stranded and at grave risk while their government-issued security clearances expire,” Mark Hetfield, the executive director of HIAS, said in response to the new order.
The long-term consequences of the executive order — the changes to policy that will be in place 120 days from now — are the same as they were in the January 27 version. The government is still going to produce a list of countries that can’t be trusted to provide needed information to the US, and people from those countries will be indefinitely blacklisted from entry. People hoping to come to the US are still going to be asked to produce more information than they have in the past, and that information is going to be scrutinized more heavily. And the US is still going to admit only half as many refugees as it was planning to under Obama.
The new executive order gives the administration a better chance in court — but is it enough?
The new executive order is guaranteed to be challenged in court, just like the original was. But the new order is going to be much easier to defend.
Advocates now have to decide where they’re going to file a challenge, and are likely to pick a court they think might be skeptical of the ban. “The challengers can pick their best shot, which almost certainly means they will proceed with a Ninth Circuit case,” points out Temple University law professor Peter Spiro, given the skepticism judges there showed the original version of Trump’s ban.
Then it’s going to be up to the circuit court to figure out whether the new order requires a separate court case, or whether it can be rolled into the existing lawsuits against the first version of the ban.
Either way, the new ban will be easier to defend — because it’s designed to affect immigrants who aren’t already in the US.
Noncitizens have some rights in the US, but different groups of noncitizens have different levels of rights. Legal permanent residents have some due process rights under the Constitution, and one of the biggest problems with the first order, legally speaking, was that it deprived those immigrants (as well as visa holders living in the US) of their ability to return to America after traveling abroad.
Now, the executive order only applies to people who’ve never been admitted to the US at all. “Prospective visa holders occupy the lowest rung in the constitutional hierarchy,” Temple University professor Peter Spiro says. “There are many precedents saying flat out that they have no constitutional rights at all.” Prospective visa holders can’t even sue on their own behalf; US-based institutions or people, like state universities, have to argue they are being deprived of rights because the immigrants aren’t allowed to enter.
If the Trump administration had just written the order this way the first time around, it might never have been struck down. But they didn’t, and it was.
The 9th Circuit (and other federal judges) subjected the original ban to a higher level of scrutiny than was strictly necessary. While judges don’t usually get in the habit of second-guessing national security decisions, Josh Blackman of South Texas College of Law says “the 9th Circuit imposed an (unprecedented) burden on the government to justify the ban” — forcing the Department of Justice to offer evidence that the seven countries named in the original ban posed a threat to national security. The judges reacted very badly when the DOJ tried to claim the executive order was outside the scope of judicial review entirely, and they were extremely skeptical of the government’s attempts to “clarify” the scope of the ban after it first came out.
A new version of the executive order can’t wipe the judges’ minds clean. And while the kerfuffle over the initial executive order doesn’t necessarily change the constitutionality of the new one, it could provide fuel to the fire for judges who believe the whole thing is just an attempt to put lipstick on a “Muslim ban” — or at least that by singling out six countries, it discriminates on the basis of nationality.
“It's hard to imagine,” Temple’s Spiro told Vox before the text of the new ban was issued, “that it won't look reverse engineered, if not concocted.” (That’s especially true because leaks out of the federal government, in the weeks before the new ban was signed, made it clear that many federal analysts felt they were being asked to justify the ban retroactively.)
Whether it’s appropriate for federal judges to consider this history when they examine the new ban is an open question, constitutionally. (It depends on what standard of review they think is appropriate.) It would be pretty aggressive for federal judges to reject the new ban, despite the changes that have been made, because the history of the ban’s implementation convinced them it was motivated by Islamophobic animus rather than national security concerns. But if the legal battle over the first version of the executive order is any indication, at least some federal judges are ready for a fight.
The review process made it easier for Republicans to get on board
The latest executive order is almost certainly going to be a lot smoother to implement — and thus a lot easier for Republicans to defend politically.
When President Trump signed the original version of the ban, he’d only been in office for a week. Barely anyone in his administration had even been briefed on the executive order — Homeland Security Secretary John Kelly was reportedly in the middle of his briefing when he found out the order was being signed on live TV. No training had been provided to the agents who were supposed to implement the order, and different parts of the federal government disagreed, even after it was signed, about who was supposed to be affected.
The administration took pains to develop the second version of the order in a more normal way. As Homeland Security John Kelly put it in the press conference rolling out the new order, this time “there should be no surprises.”
This version of the executive order definitely won’t cause the chaos and panic of the first one, because it doesn’t strip visas from anyone who currently has them. People from the blacklisted countries currently applying for visas probably won’t get them, though the executive order implies visas will be issued until March 16. But people who are already to the point of boarding a US-bound airplane, or arriving in an American airport, aren’t supposed to be affected by the new executive order.
Since many Republicans expressed their displeasure with the implementation of the first travel ban but not its concept, a smoother rollout of the next version might be a good opportunity to get them lined up behind the president.
Today's Executive Order will help achieve President Trump’s goal of making us safer.— Lindsey Graham (@LindseyGrahamSC) March 6, 2017
People still might get detained at airports, just as people were while the original ban was on hold, but it will be because of the discretion and aggression shown by Customs and Border Protection agents under Trump, not because of the order itself.
The human cost of making Donald Trump feel better
The new version of the executive order is so limited, and so cautious, that it practically raises the question: Why did the Trump administration need to issue a new order at all?
People who’ve been following the ongoing soap opera that is the Trump White House probably know the answer. The Trump administration couldn’t simply accept a temporary setback when the courts put the initial ban on hold. Because Donald Trump’s ego wouldn’t have allowed it.
There would have been nothing stopping the Trump administration from simply continuing to implement the parts of the original executive order that weren’t put on hold by the courts. By March 6, the Department of Homeland Security would already have provided a list of countries that could be subject to indefinite visa bans; DHS and the State Department could be in the process of designing reforms to the visa application process.
But instead, the government rolled out a new executive order to reinstate (in modified form) the temporary measures the courts had struck down.
It asked analysts from the Department of Homeland Security to offer evidence supporting its foregone conclusions. Those analysts instead questioned the premise of the ban — one document, drafted by the Department of Homeland Security’s Office of Intelligence and Analysis (and leaked to MSNBC last week), pointed out that radicalized immigrants tend to become radicalized after they’ve come to the US, while another DHS report (leaked to the Associated Press) argued that an immigrant’s nationality is a poor predictor of whether he’s likely to become a terrorist.
But the White House’s plans weren’t swayed by mere policy concerns. Instead, it planned a rollout based on politics. It delayed the signing of the new order because Donald Trump was having a good press day after his joint address to Congress on February 28, only to schedule it for March 6 after several days of setbacks for the administration. It was the move of a White House that is desperate to win and refuses to admit mistakes.
Indeed, according to the Washington Post, plans for the new executive order were used to cheer up a sulking Donald Trump. At a Mar-a-Lago dinner over the weekend. Kelly and Sessions (along with Bannon and Miller) reportedly discussed their plans for the rollout in an attempt to get Trump’s mind off his anger about Sessions’s recusing himself from DOJ investigations of the administration’s ties to Russia, and Trump’s belief that President Obama tapped the phones at Trump Tower.
If the White House had simply been willing to accept a temporary setback when the executive order was put on hold in early February, it might still have prevailed (after months or years) at the Supreme Court — and it still would have been able to do most of the things the current order requires. But instead, it reinstated a policy that’s going to put tens of thousands of refugees’ lives on hold for several months (or longer), and could signal the beginning of an indefinite ban on immigration or other arrivals from countries like Syria and Iran.
The new version of the executive order isn’t as bold as its predecessor. It won’t make as much of a splash. But by limiting the scope of the “2.0” version of the ban, the White House has inadvertently shown that its motives are even more limited — the protection of the ego of Donald J. Trump.