Trump makes key changes to travel ban
President Trump on Monday signed a new executive order limiting travel to the United States, making significant revisions to the policy that appear aimed at defusing controversy and defeating challenges in court.
Democrats were quick to denounce the order, but it did not generate the same level of backlash as the travel ban in January, which was met with late-night protests at airports around the country.
The order still temporarily bans most travel to the United States from six Muslim-majority countries and halts refugee resettlement in the United States.
But in other ways, the order represents a major departure from what came before.
The policy will not take effect until March 16, rather than immediately; it spells out clearly that green-card holders are not affected; and it provides a lengthy list of travelers who could be provided a waiver to come to the U.S., including students and children seeking medical treatment.
The narrowed policy drew praise from Republicans, including Sen. Lindsey Graham (S.C.), a frequent Trump critic. He said the new order would both “pass legal muster” and “help achieve President Trump’s goal of making us safer.”
The order will almost certainly garner court challenges from opponents who say it is discriminatory toward Muslims, but former officials and legal experts say that the administration has plugged many of the most egregious legal holes.
“This is definitely on much firmer legal ground,” said a former assistant secretary of Homeland Security. “It’s pretty narrowly applied to new visa applicants, which is probably the place where the president has the most authority.”
Among other changes, the new order does not single out Syrian refugees for indefinite suspension, instead barring all refugee resettlement for 120 days.
The administration scrapped language that would have given preference to religious minorities — such as Christians from the Middle East — once refugee resettlement resumes. That provision had provided ammunition for critics who labeled the previous order a Muslim ban.
The order also removes Iraq from a list of the countries from which travel is banned for 90 days, attempting to smooth over relations with an ally in the fight against the Islamic State in Iraq and Syria.
From the start on Monday morning, the introduction of the policy was a departure from the unscheduled announcement in January, which came on a Friday evening.
Officials from the Homeland Security, State and Justice departments — left out of the drafting process of the first order — on Monday vouched that development of the order was a collaborative process.
Reporters were also briefed by senior officials an hour before the public announcement of the ban.
The previous travel ban, signed one week after Trump’s inauguration, took force immediately without clear guidance to the agencies implementing it. Hundreds of travelers en route to the U.S. were detained, and the courts moved quickly to place the policy on hold.
A federal judge in Washington state on Feb. 3 issued a nationwide ruling freezing the travel ban. A three-judge panel of the 9th Circuit Court of Appeals later upheld the lower court’s order.
The decision was an embarrassing setback for the White House, which was criticized for a sloppy rollout that cut out key Cabinet officials and lawmakers on relevant committees.
This time, travelers, airlines and airports will have 10 days to prepare before the policy goes into effect.
The delay stands in stark contrast to Trump’s previous insistence that any advance notice or delay in implementing the ban would allow “bad dudes” to rush into the country.
“I would argue that the court kind of undercut our argument by not reading the U.S. code the way it’s intended to,” press secretary Sean Spicer said to explain the delay.
“But I think we lost the element of surprise way back when we said we would issue a second executive order.”
While the administration may have made the policy more palatable to the courts, it appears far from bulletproof.
A leaked draft assessment from the Department of Homeland Security found little evidence that citizens from the countries in Trump’s travel ban pose a terrorist threat, something opponents of the policy could cite in court.
The order states that “hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States,” but provides just two examples: a case involving two Iraqi nationals, a country not covered by the new ban, and another case involving a naturalized U.S. citizen born in Somalia.
Attorney General Jeff Sessions delivered a fierce defense of the president’s authority in matters of national security at a press conference.
“The Department of Justice believes that this executive order, just as the first, is a lawful and proper exercise of presidential authority,” Sessions said. “The executive is empowered under the Constitution and by Congress to make national security judgments and to enforce our immigration policies in order to safeguard the American public.”
The original order will be revoked when the new policy goes into effect in 10 days, effectively mooting current legal challenges, and it remains to be seen how deferential the courts will be in litigation brought against the new policy.
“As the new [executive order] cures many of the defects of the earlier one, I believe that the courts will defer to this more limited exercise of the president’s authority to suspend the entry of any class of non-citizens he deems detrimental to the national interest,” said Ted Ruthizer, former president of the American Immigration Lawyers Association.
For critics of the policy writ large, the updated order is no better than the first.
“No amount of relabeling will change the fact that President Trump’s travel ban is unconstitutional and un-American,” Sen. Dick Durbin (D-Ill.) said in a statement.
“Trump’s first travel ban was blocked by multiple federal courts, and his latest will no doubt face the same fate.”
Jordan Fabian contributed.