Still smarting from his defeat at the Ninth Circuit Trump today issued a new and improved travel ban aimed at surviving judicial review. My first impression of the new document is that it is likely (but not certain) to do so. Here are some highlights and key differences from the original travel ban:
- The new ban expressly revokes the original travel ban as President Trump states “I am revoking Executive Order 13769 and replacing it with this order.” The formal revocation serves to moot the existing court cases pending against the original order.
- A stronger effort is made to justify the order by listing terrorist related events or charges involving immigrants.
- Iraq is excluded from the order reducing the list to the six countries of Iran, Libya, Somalia, Sudan, Syria, and Yemen. The EO states that Iraq is a “special case” where lawlessness continues to present a risk of immigration from there but acknowledges Iraq’s “close cooperative relationship between the United States” in fighting terrorism as justifying different treatment.
- The order does not apply to those with a valid visa prior January 27, 2017 (the date of the original travel ban) or to those who have valid visa on the effective date of the new order. Those who had valid visas prior to January 27th revoked by the original travel ban are entitled to have them reinstated.
- The order expressly does not apply to any lawful permanent residents of the United States (e.g. Green Card holders).
- There is an explicit process for case-by-case exceptions that can be granted by consular officials when hardship and lack of threat to national security is demonstrated. A list of examples of when such exceptions might be granted is provided and includes such things as students who were previously studying in the United States and who seek to return.
- A delayed effective date of about ten days allowing time for airports, airlines and those potentially affected to adjust their plans. This will hopefully avoid the airport chaos created by the instantaneous implementation of the original travel ban. The new EO does not go into effect until 12:01 a.m., eastern daylight time on March 16, 2017. This effectively acknowledges that Trump’s claim the old order had to have immediate effect to prevent the “bads” from rushing in was a bad argument.
The new travel ban does fix most of the facial legal infirmities of the original and therefore is much more likely to survive judicial review. The problem the administration will continue to face with any travel ban goes beyond the document itself and to intent. The Attorney General of New York has already stated he plans to challenge the new travel ban on grounds that its intent is related to religious discrimination. As the 9th Circuit noted, policies intended to have a religiously discriminatory effect may still run afoul of the First Amendment even if facially neutral. Trump’s campaign promises to ban Muslims and Rudy Giuliani’s assertion that Trump asked him to draft the original EO to be a Muslim ban but to make it legal, are statements that challengers to the EO will attempt to use to prove discriminatory intent.
However, those seeking to invalidate this travel ban will likely have to prove that religious discriminatory intent to prevail.