Today Hawaii filed a lawsuit to halt President Trump’s revised executive order on immigration. This is no doubt the first in a long list of lawsuits that will be heading to the courts soon. How will all of this play out in court?
Stephen Miller, Senior Advisor to President Trump, went on TV in late February promising that “fundamentally, you’re going to have the same basic policy outcome for the country.” Miller is largely right, and that may spell legal problems for the White House.
Here’s the “down and dirty” on Trump’s new travel ban, including an analysis of what is likely to withstand judicial scrutiny, what is likely to still cause problems for the White House, and what’s next for the legal challenges.
What’s New in the Revised Order?
The core of the new travel ban is the same: the White House is suspending the entire refugee program for 120 days, and capping the total number of refugees coming into the US at 50,000—60,000 fewer than previously permitted. But there are quite a few differences, as well, including the following:
- No express preference for any religion (Section I(b)(iv)): One of the most concerning aspects of the law is that it was a form of unconstitutional religious discrimination under the 1st Amendment because it provided in Section 5 (b) that the Secretary of Homeland Security shall “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” In the new order, this indisputable religious preference has been solved by eliminating this provision. This did not sit well with the 9th Circuit. 9th Circuit Order at 25.
Section I(b)(vi) of the new executive order makes the case that the previous order “was not motivated by animus forward any religion,” but it nevertheless goes on to abandon the preference.
- Green Card holders expressly exempted (Section 3(b)(i)): The 9th Circuit was not happy about how Trump’s previous executive order dealt with green card holders (legal permanent residents). The Justice Department argued that the White House counsel clarified the confusion by offering “authoritative guidance.” The 9th Circuit disagreed: “The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order … The White House counsel is not the president.” 9th Circuit Order at 22.
Under Section 3(b)(i), the new order attempts to solve this problem by clarifying that the travel ban does not apply to legal permanent residents — commonly referred to as green card holders. Specifically, the order provides a new “Exceptions” section, which says the “order shall not apply to six categories of individuals, including “any lawful permanent resident of the United States.”
- Current visa holders excluded (at least those with Visas as of January 27, 2017) (Section 3(a)(ii)). The 9th Circuit slammed Trump’s January 27 order on the grounds that she process rights were not being respected by providing detailed notice of new restrictions for those with current or pending visas. 9th Circuit Order at 5. This was especially true for those in the air she the order was issued — which led to the widely covered initial “chaos.” 9th Circuit Order at 5.
Section 3(a)(ii) of the new travel ban provides that it only applies to “foreign nationals” who “did not have a valid visa at 5:00 pm, eastern standard time on January 27, 2017.” Setting aside the obvious issue that the White House is retroactively applying the date to the time of the first order, most of this concern will be eliminated with this new provision, which will help it in court and also improve the optics of the situation.
- Dual citizens, diplomats and those granted asylum excluded (Section 3(b)(i)). Section 3(b)(i) of the order also expressly states that it does not apply to anyone already in the US, dual citizens, those with diplomatic visas, and individuals who have been granted asylum by the courts (those seeking protection from deportation after having entered the United States legally or illegally).
- Translators in special visas permitted (section (3(c)(vi)). One of the hot-button issues with the first order was that it applied to “special immigrant visas,” a type of visa given to Afghans and Iraqis who aided the US there–principally as translators.
3(c)(vi) of the new order, “foreign national[s] employed by, or on behalf of, the United State Government” are expressly called out for discretionary waivers.
- Iraq removed from list of seven countries (Section I(g)). The first order banned refugees from seven majority Muslim countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — for at least 90 days. The ban did sit well with Iraq. A leaked State Department memo indicated that Iraqi officials called the ban “insulting to Iraqis” and that Iraq would retaliate by banning US-based General Electric from expanding into the region. Iraqi officials further voiced concern about the propriety of the ban when US and Iraqi troops are cooperating against ISIS
Section I(g) of the new order expressly removes Iraq from the list, nothing that “since Executive Order 13769 was issued (the first order), the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal.” Reports indicate this is because Secretary of State Rex Tillerson said he was satisfied with Iraqi vetting after discussions he had with its government about its vetting procedures. But Tillerson’s conversations and conclusions were no doubt prompted by the strong sentiments expressed by Iraqi officials about the ban being viewed as a slap in the face to Iraq as we seek its assistance.
- Gives 9-point framework for “discretionary” immigration waivers (Section 3(c)(i)): The 9th Circuit noted “The Government suggests that the Executive Order’s discretionary waiver are a sufficient safety valve for those who would suffer unnecessarily, but it has offered no explanation for how this provisions would function: how would ‘national interest’ be determined, who would make the determination?” 9th Circuit Order at 28. According to the New York Times, during the period that Trump’s travel ban was in place, only two refugees were allowed in under the discretionary authority from the seven majority-Muslim countries that are the subject of the ban. According to the Times, about 1,800 refugees from those countries arrived per week from the seven countries into the US since 2016.
Section 3(c)(i) of the new travel ban, though not perfect, puts more meat on the bone when it comes to the order. Specifically, it outlines a 9-point framework for discretion, including those coming for work, those who have previous significant contacts with the US, those wishing to visit “close family members,” infants, children, adoptees, or those seeking medical care, exchange visitors, etc. The new order provides more guidance (but certainly enough to appease progressives and perhaps judges).
- No indefinite ban on Syrian refugees (Section 2(c)). The first version of the travel ban indefinitely suspended the entry of all Syrian refugees. 9th Circuit Order at 4. The 9th Circuit fixated on the scope of the initial order because laws that show religious preference — either expressly or by intended impact — must be “narrowly tailored” under the law. An indefinite ban, by its very nature, is not narrowly tailored.
Section 2(c) of the new executive order corrects this issue by jettisoning the indefinite ban on Syrian refugees entirely; instead, simply nothing that Syria is subject to the same 90 day ban as other five countries on the list.
9. Doesn’t take effect for 10 days. Under Section 14 of the new order, it does not take effect until March 16, 2017. This is designed to avoid some of the chaos started by the first travel ban.
Will Courts and the Judiciary Still View the New Order as Having Problems?
- Besides Iraq, majority Muslim countries still targeted and Trump’s “Muslim ban” comments: For all its improvements, the fundamental problem has not been cured. The 9th circuit was clear that “[i]t is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment” claims. 9th Circuit Order at 22. This is where Trump’s statements on the “Muslim ban” comes into play.
The new order still bans immigrants from seven majority Muslim countries. Couple that with Trump’s bragging about the ban of Muslims and you have a near inescapable problem that will no doubt plague judges looking at this law in a deep way. This is likely the fatal flaw of any travel ban and it will be nearly impossible for Trump to escape this fact.
- “Rational” connection to safety? The 9th Circuit assailed the Trump administration for failing to articulate how the order has any connection to safety. At a minimum, the Trump administration needs to prove that its orders have a “rational basis.” This is a pretty low threshold in the law, but the 9th Circuit noted “The Government has pointed to no evidence that any client from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” 9th Circuit Order at 26.
Section I(e) is the part of the new order where the White House tries to show the “rational” connection to safety. Specifically, the order provides “the following are brief descriptions, taken in part from the Department of State’s Country Reports on Terrorism 2015 (June 2016) … demonstrate why their nationals continue to present heightened risks to security of the United States.” Sections I(e)(i) – (vI) of the new order then go on to provide summaries of the terror connection for Iran, Libya, Somalia, Sudan, Syria and Yemen.
Section I(h) of the new order provides that “The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.” The problem with this argument, of course, is twofold:
(1) It smacks of being manufactured. The Trump administration will have a difficult time articulating why the evidence and intelligence is following the policy and not the other way around.
(2) The reports run contrary to those prepared by the intelligence division of Homeland Security. Multiple internal reports from the office of Intelligence and Analysis within DHS (I&A) suggest that banning citizens from the seven majority Muslim countries identified in Trump’s travel ban will not keep the country safe and, in fact, may jeopardize safety because it undermines efforts to engage immigrants who may be at risk of being radicalized. The reports point out that, in the last six years, foreign-born US-based individuals who have carried out violent terror attacks have come from 26 countries — most of which are not on the ban.
Court are going to have a difficult time squaring these leaked reports with any other reports that articulate why these seven countries are in fact terror threats.
- Pretext risk: Government talking out of both sides of mouth. In a recent scheduling order in the underlying Washington case, Judge James Robart noted: “The court understands Plaintiffs’ [State of Washington’s ] frustrations concerning statements emanating from President Trump’s administration that seemingly contradict representations of the federal government’s lawyers in this and other litigation before the court.” This no doubt refers to Stephen Miller’s assertion that the new order is fundamentally “the same”–which flies in the face of DOJ assertions to the contrary. Against this backdrop, as Judge Robart has already noted, DOJ arguments smack of pretext — a concept judges loath.
My Legal Assessment of President Trump’s Revised Travel Ban Is DOA
My legal assessment: legally speaking, the new travel ban may be DOA. Courts will not look at the order in a vacuum — instead, they will consider the order in context to determine if it’s really a mask for religious discrimination. And the context hurts the White House. Trump advisors Rudy Giuliani and Stephen Miller have made statements linking this travel ban to his campaign promise to shut down Muslim immigration. Further, internal DHS Office and Intelligence (I&A) reports directly contradict broader after-the-fact DHS/DOJ conclusions prepared at the request of the White House. The legal term is “pretext.” There is simply no amount of legal posturing and maneuvering that the DOJ can do to escape these facts. And that is a real and perhaps insurmountable problem for the White House.
If I were Trump’s lawyer, what would I advise?
If I were a White House lawyer, how would I advise the president given where we are today? That’s a tough question to answer given that the controversial policy being advanced is, in my view, legally and politically flawed. And my bias disclaimer for this entire analysis: on a personal level, I strongly disagree with the travel ban executive order and its related policy because it is, in my opinion, based on incorrect assumptions about safety, is profoundly damaging and divisive for the country, and it is contrary to the core values upon which our nation was founded.
With that disclaimer about my fervent opposition to the order aside, if forced to put myself in the position of a White House lawyer, I would first admonish President Trump that an executive order, regardless of its subject, should not be pushed so hastily and without vetting. Second, I would advise rescinding the order and the concept entirely, and letting it go. Based on internal DHS reports, it is evident there is strong evidence to suggest that the country may not be safer with the law, that it is only furthering the divide in the country, and that it is hurting US standing internationally. On top of this, based on the 9th Circuit opinions, I believe it’s far from clear that this order will withstand judicial scrutiny or is constitutional.
Based on all of the above factors, I would say that the new order should not be further pursued — period. But, aside from the legal analysis, there is a political reality to the situation: the White House is looking for a policy win. With the rollout of “Trumpcare” being met with widespread criticism from Democrats and Republicans, there is no doubt a strong desire within the White House to prove it can navigate Washington and back up its rhetoric with a concrete policy. So if White House officialsignored my advice and insisted on moving forward with the order and not rescinding it, as a White House lawyer, I would say that Trump has no choice but to move forward in a way that focuses on the neutral application of the law and by coupling the rollout with a message that he legitimately and genuinely rejects and denounces previous statements that he made on the campaign trail about targeting any religion. Again, this analysis is only if the White House insisted on moving forward; my overarching advice would be to rescind this entirely.
What’s Next Legally?
We start over in the courts. With the new order replacing the old one, the underlying cases will quickly be held moot and likely dismissed.
In the last go-round, approximately two dozen lawsuits were filed. The suit from Hawaii has already started the ball rolling with the new lawsuits. The Washington State suit ended up being the death blow for the first order. With the courts having already determined Washington has standing, that appears to be the most viable suit again because Washington can capitalize on existing court determinations that call into question the fundamental underpinnings of a suit like this.
Any suit filed by Washington would again start in the US District Court. Technically any judge could be assigned to the matter, but expect Washington to try and have any future claim consolidated with the first lawsuit to keep Judge Robert in the mix — a Republican George W. Bush appointee who demonstrates sympathy for Washington’s argument. Expect the DOJ to vigorously fight, arguing that a new suit requires a new judge.
As with the first go-round, Washington or any other plaintiff would likely move for a temporary restraining order to freeze the ban pending further review. If granted, that decision would likely be appealed to the 9th Circuit Court of Appeals or other relevant appellate court and then perhaps the US Supreme Court.
After the DOJ’s first loss, Trump tweeted in all caps, “SEE YOU IN COURT” — suggesting to most that an appeal was likely. Although that initially didn’t happen because the DOJ abandoned the first appellate case, it looks like Trump’s tweet may end up being right after all.
The legal analysis and opinions expressed in this commentary are those of James Goodnow only, and they do not reflect the views of any one else or any other person, firm, business or entity. Learn more about James Goodnow, his commentary, and the catastrophic injury and wrongful death practice he has helped build here.