Can Trump Fix His Travel Ban Executive Order?: QuickTake Q&A

By Bob Van Voris, Bloomberg News

President Donald Trump’s executive order blocking refugees and citizens of seven mostly Muslim countries from entering the U.S. is on hold after a panel of three judges on a San Francisco-based appeals court upheld a Seattle judge’s decision barring enforcement of the order. The Trump administration can keep fighting in the federal courts to have the order reinstated, but officials say they are also considering another course — revising the order in an effort to overcome the legal challenges to it. As it stands, the order issued Jan. 27 bars Syrian refugees from entering the U.S. indefinitely, and all other refugees — people fleeing their homelands claiming persecution or fear of violence — for 120 days. It also blocks entry to the U.S. for 90 days to all citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

1. What are the obvious revisions Trump might make?

Legal experts have suggested Trump may issue a new order making it clear it doesn’t apply to green card holders — people who are legal permanent residents of the U.S. — and people who already are legally in the U.S. on visas letting them in for work, study or other approved purposes.

2. Didn’t the administration exempt green-card holders?

Shortly after the order was issued, causing chaos at airports in the U.S. and abroad, White House counsel Donald F.
McGahn II said it didn’t bar green card holders from reentering the U.S. after a trip outside the country. That didn’t satisfy the San Francisco-based appeals court. “The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments,” the panel said in its unanimous ruling.

3. Would the two exemptions answer the court’s objections?

Not all of them. The appeals court said the order also risked violating the rights of foreigners who have a connection with a U.S. resident or institution. The panel pointed to a 2015 U.S. Supreme Court decision that left open the possibility of U.S. citizens suing on behalf of non-American spouses trying to enter the country. The appeals court also said the Supreme Court has made it clear that everyone in the U.S., legally or not, is entitled to due process, or the right to fair procedures before being deprived of freedom or property.

4. How might a revised order deal with that?

Legal scholars suggest Trump could add legal protections such as a hearing or a written appeals process for applicants denied refugee status or U.S. visas to answer claims that the order fails to provide constitutionally-required due process.

5. Did the appeals court have other issues?

Yes. It faulted the administration for not giving an adequate explanation for why it singled out people from the seven nations. During the hearing, judges asked the administration’s lawyer for evidence that existing screening procedures for visitors and immigrants were insufficient to deal with terrorist threats and for proof that people admitted from the seven targeted countries had committed federal offenses in the U.S.

6. Have other judges had additional concerns?

Yes. A federal judge in Virginia focused on Trump’s past statements targeting Muslims. U.S. District Judge Leonie Brinkema said on Feb. 13 that she gave little weight to the administration’s assurances that it wasn’t doing that, considering Trump had in 2015 called for a “total and complete shutdown of Muslims entering the U.S.” Such comments raise concerns that the order violates the Constitution’s Establishment Clause, which forbids the government from favoring one religion over another, and the Equal Protection Clause, which prevents discrimination against people based on their religion. The administration has argued that the order should be judged on its own, but the appeals panel said that “evidence of purpose beyond the face of the challenged law” can be used to determine its lawfulness.

7. How might a new order address those concerns?

The administration could provide evidence showing the ban is intended to address a real danger of terrorism rather than targeting Muslims. It could also try to confine the order to individuals who are not protected by the Constitution, which generally covers American citizens and people physically in the U.S. One option would be to limit the bar from entry to people with no connection to the U.S., says Stephen Yale-Loehr, an immigration-law professor at Cornell University.

8. Would a new order be challenged?

Certainly. Almost everyone agrees that no matter what the content of a new immigration order, opponents will continue to sue to try to block it from being put in place.

For more news, visit Bloomberg.

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