Revisions to Trump travel ban seen to strengthen its legal case
President Trump has lost nearly every round of the court cases challenging his ban on U.S. entry from selected nations with overwhelmingly Muslim populations. But on Monday he may have won the battle, or taken a big step toward winning it, by running out the clock.
A day after Trump issued a new order indefinitely restricting travel from eight countries — replacing the six-nation, 90-day ban that expired Sunday — the Supreme Court canceled its Oct. 10 hearing on the legality of the last order and asked for brief written arguments by Oct. 5 on whether the case is now moot.
Or, in other words, whether nine months of legal arguments by states, civil rights groups and refugee organizations have ended without a ruling by the nation’s highest court, which meanwhile has allowed the government to enforce portions of Trump’s order excluding
thousands of immigrants, visitors and refugees.
And although opponents contend the president’s new decree has the same flaws they challenged in earlier orders, some legal analysts say the administration has now offered rationales that courts will be reluctant to question.
Trump’s first order, in January, and its successor, in March, solely targeted nations with populations that were more than 90 percent Muslim; followed an election campaign in which he had called for a ban on Muslim immigration to the United States; and stated little justification other than a need to combat terrorism. Federal courts had little difficulty finding those orders discriminatory, either by religion or by nationality.
But Sunday’s order added three countries to the list: Chad, which is mostly Muslim, along with Venezuela — where the ban is limited to officials of the leftist government and their families — and North Korea, the target of much of Trump’s overseas wrath. The other nations are Iran, Libya, Somalia, Syria and Yemen, which were on the previous list, while Sudan has been dropped.
Perhaps more significantly, the new order also said the Trump administration had asked the world’s nations for details of their review procedures for travelers abroad, and applied the travel ban only to nations that failed to meet U.S. standards — a counter to opponents’ argument that the nations were chosen for their religious composition.
“I think a court is more likely to hold that this version of the travel ban is legal,” said Stephen Yale-Loehr, a professor of immigration law at Cornell University and co-author of a leading reference book on the subject.
Trump’s order, Yale-Loehr said, “goes into depth about how the administration conducted its survey of other countries’ identity-management and informationsharing procedures,” a narrative to which courts commonly defer. The order is not all-inclusive, in that it exempts holders of U.S. visas, for example, and allows students and employees from the targeted countries to remain in the U.S. And, he noted, the new list includes two non-Muslim nations.
The administration’s “more detailed record of the justifications” makes it more likely that the court will find a distinction between the new order and its predecessors, said Michael McConnell, a Stanford law professor and former federal appeals court judge.
Jesse Choper, a professor of constitutional law at UC Berkeley, said the addition of North Korea, in particular, would counter opponents’ allegations that the order is a Muslim ban. He also noted that that courts traditionally give the president considerable authority over immigration and national security.
“They’ve got a hard row to hoe,” Choper said, referring to plaintiffs in the court cases. On this issue, he said, Supreme Court justices have signaled, in their orders thus far, that “the less they decide, the better,” and they are likely to send the dispute back to lower courts, even though “they’re going to have to decide it sooner or later.”
Sooner would be better, said another UC Berkeley law professor, Leti Volpp.
The new order “could be challenged on the same grounds” as the previous versions, Volpp said. She described the additions of three nations as “cosmetic,” saying U.S. immigration from North Korea and Chad is minuscule.
Advocacy groups made the same point more vehemently.
“President Trump’s original sin of targeting Muslims cannot be cured by throwing other countries onto his enemies list,” said Anthony Romero, executive director of the American Civil Liberties Union, which represents migrants and refugees in one of the cases before the court.
The new order, and the court’s response, shed no light on the status of refugees, those fleeing violence and hardship in their homelands. Trump’s last order barred all U.S. admission of refugees for 120 days, a period set to expire Oct. 24. The court, without explanation, allowed enforcement of most of that part of the ban in June, denying admission to 24,000 refugees who had been screened by U.S. consular officials and had gained sponsorship from government-approved resettlement agencies.
Sunday’s order did not mention refugees. But Trump, who reduced total U.S. admission of refugees from the 110,000 approved by former President Barack Obama to 50,000 for the year ending Sept. 30, is reportedly considering further reductions for the next 12 months, an action that would be virtually immune from court review under federal law because it falls within presidential authority.
The administration has created “complicated and detrimental scenarios for people already living in a perilous state,” said Hardy Vieux, legal director of the nonprofit Human Rights First and a refugee advocate. “It calls into question our timehonored values.”
Bill Hing, an immigration law professor at the University of San Francisco, said the Supreme Court was partly responsible for the uncertainty surrounding the case.
“This has always been a moving target, given the White House’s fits and starts,” he said. In view of the earlier order’s expiration date, he said, the Supreme Court “should have heard it sooner, and now there’s going to be a tough challenge for the plaintiffs to get the court to rule.”