Trump's travel ban will prove critics always valued partisanship over law
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On Monday, President Trump issued his revised “Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States.”  As the Order makes clear, it replaces rather than supplements prior Executive Order 13769, which had been blocked by a temporary restraining order (TRO) issued by a federal district court judge in Seattle, W.A., and upheld by the Ninth Circuit Court of Appeals.  The original case is now moot.

In the wake of the Ninth Circuit’s decision declining the Department of Justice’s request to stay the TRO, the Attorney General of the State of Washington offered, a bit presumptuously, some advice to the president:  “Our hope is, as I’ve said before, that the president essentially tears up the current unlawful, unconstitutional executive order and starts over,” General Bob Ferguson was reported to have said.  

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Although, as I have argued previously, there was nothing either unlawful or unconstitutional about the president’s prior order, the new order removes even the pretextual grounds on which the prior order was challenged.  

 

As a result, I suspect that we are now going to see General Ferguson and the other critics of the president’s immigration policy exposed for not having really been concerned with the legality of the order at all — their legal challenges, after all, were exceedingly flimsy — but instead revealed as simply attempting to obstruct implementation of one of the key policy initiatives on which the president was elected.  Time will tell.

But what does the new order do to address even the flimsy legal challenges?  

First, it makes quite explicit what was already implicit in the prior order, namely, that it does not apply to citizens and lawful permanent residents.

That misinterpretation of the prior order, quickly corrected by the White House Counsel’s office, appears to have originated from within the bowels of the Department of Homeland Security bureaucracy when an enforcement guideline was shipped out late in the day on Jan. 27 (the date of the initial executive order) directing line officers in the Customs and Border Protection Service to deny admission even to lawful permanent residents from the seven listed, terrorist-supporting countries.  

The resulting chaos at the nation’s international airports over the weekend played nicely into a false narrative that the original order was rushed, ill-considered, and unconstitutional (lawful permanent residents have Due Process rights, after all, that simply do not apply to aliens seeking entry to the United States, and the lack of Due Process for lawful permanent residents was one of the grounds for the Ninth Circuit’s ruling against Trump).  

Whether that misinformation was a deliberate maneuver by “deep state” operatives or Obama administration holdovers hostile to President Trump’s policy, or simply ineptness on the part of the federal bureaucracy, remains to be seen, but the new Executive Order explicitly countermands the original misinformation.

Second, the new Executive Order retreats from the prior order’s revocation of existing visas, even though that part of the prior Order was also perfectly legal.  Title 8, Section 1201 explicitly allows the Secretary of State to revoke any existing visa “at any time, in his discretion” and, in a section completely ignored by the courts in the prior round of litigation, also provides that “(t)here shall be no means of judicial review” of such visa revocations.  Nevertheless, the new Executive Order expressly provides, in Section 12(c), that “No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.”

Third, to address court cases that have implied that U.S. Citizens might have a constitutionally-protected right to associate with aliens seeking admission to the United States, the new order explicitly sets out family and business relationships as among the grounds that could give rise to case-by-case waiver of the Executive Order’s otherwise categorical temporary ban on admission to individuals from the six listed, terrorist-harboring countries.  

Fourth, in response to the rather specious claim that the prior order violated the Establishment Clause by giving preference to non-Muslim religions, the new Order explicitly reiterated that the prior order’s directive to give priority to refugee claims by members of persecuted, minority religious applied to any minority religion — Christians in majority-Muslim countries, for example, but also Muslims in Christian-majority countries or members of a Muslim minority sect in a country with a majority of another Muslim sect.  Moreover, the new Order does not include the persecuted minority religion preference at all.

Finally, to address an issue raised by the Ninth Circuit’s claim that the Executive offered no evidence implicating these particular countries in terrorist activity, the new Executive Order includes a separate paragraph outlining each country’s support of, or connection with, terrorism.  

In sum, the new Executive Order definitively addresses even the pretextual grounds that led to legal challenges against its predecessor.  If the critics of the prior order were truly sincere in their concerns about the prior order’s unconstitutionality, the new order should be welcomed by them as perfectly legal and constitutional.  

But if, as I suspect, those concerns were feigned, expect a new round of litigation designed to block this Executive Order as well, before hand-selected judges who have already demonstrated a willingness to ignore governing Supreme Court precedent and statutory authority in order to render a “judgment” blocking, not just the President’s Executive Order, but the results of the November election.

Dr. John Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University’s Fowler School of Law, and a Senior Fellow at The Claremont Institute.


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