President Trump plans to issue a new executive order on immigration next week that will be “tailored” to address the objections of a federal appeals court.
But the legal battle over the controversial policy is far from over.
Any new travel ban is sure to spark a fresh set of lawsuits around the country, and it remains to be seen whether rescinding the old order will be enough to end the current legal challenges — and nationwide restraining order — against it
Legal experts say that depends on the courts and the exact wording of the new order, which is being crafted with the help of Justice Department lawyers and two of Trump’s Cabinet members.
“I’m told now they have something drafted,” Sen. John ThuneJohn Randolph ThuneThere is a bipartisan path forward on election and voter protections Juan Williams: It's Trump vs. McConnell for the GOP's future Biden's year two won't be about bipartisanship MORE (S.D.), the Senate’s No. 3 Republican, told reporters on Friday. “I’ve not seen what they’ve done, but I hope they’ve run all the traps on it.”
After a series of legal setbacks, Trump announced during a Thursday news conference that he would be signing a revised travel ban “toward the beginning or middle” of next week.
“We're issuing a new executive action next week that will comprehensively protect our country,” Trump said. “So we'll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people.”
A San Francisco-based appeals court rejected the administration’s request last week to lift a nationwide hold on the initial travel ban, after District Court Judge James Robart in Seattle put the policy on ice to allow time for lawsuits to proceed.
Trump brought in Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsPress: For Trump endorsement: The more sordid, the better Those predicting Facebook's demise are blowing smoke If bitcoin is 'digital gold,' it should be taxed like gold MORE and Homeland Security Secretary John Kelly on Tuesday to help map out a strategy going forward, according to Bloomberg.
A Republican aide for the Senate Judiciary Committee said the panel has not been in touch with the administration on the issue, while the House Judiciary Committee deferred to the White House.
The administration has been weighing several options, including whether to ask the Supreme Court to step in, urge the appeals court to rehear the case, fight it out in district court or rewrite the ban.
The Department of Justice (DOJ) on Thursday successfully persuaded the U.S. Court of Appeals for the 9th Circuit to hold off on rehearing the case, citing the new “superseding” executive order that is in the works.
“Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns," the DOJ said in a legal brief.
“In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation.”
The initial executive order barred people from seven majority-Muslim countries from entering the United States for 90 days; halted U.S. refugee resettlement for 120 days; and suspended Syrian refugees indefinitely. Trump says the policy is necessary to protect national security while the administration strengthens vetting procedures.
But the initial ban, which was reportedly written without the input of key congressional lawmakers and caught GOP leadership off guard, sparked chaos and confusion at airports around the country in the days after it was signed.
It was unclear at first whether the policy applied to legal permanent residents and certain other visa holders. Some travelers who were en route to the U.S. were detained and denied entry into the country, including an Iraqi interpreter who worked for the U.S. Army.
Trump said Thursday that he had wanted to include a grace period for the travel restrictions to take effect but was advised against it.
“I said this to my people: Give them a one-month period of time. But General Kelly, now Secretary Kelly, said if you do that, all these people will come in and ... you have some bad people out there,” Trump said.
“And he was right. As soon as he said it, I said wow, never thought of it. … You got to do it immediately because if you do it immediately, they don't have time to come in.”
During his news conference, Trump dropped a few hints about what the revised order might look like. The goal is to tweak the policy so that it can stand up court, using the appeals court ruling as a playbook.
“We can tailor the order to that decision and get just about everything, in some ways, more,” Trump said. “We have some of the best lawyers in the country working on it.”
The San Francisco appeals court argued that the states have legal standing to bring a lawsuit because they proved that their residents were directly being harmed by the policy. The plaintiffs, Washington and Minnesota, cited green card holders who were stranded abroad, families who were separated and public university scholars and students who feared they would be unable to leave the country and return back to the U.S.
Therefore, the new policy seems almost certain to include a carve-out for legal permanent residents and other visa holders, such as those already living in the U.S. That could remove some of the states’ legal standing in the challenge, according to law scholars.
But rescinding the initial travel ban doesn’t necessarily guarantee that the courts will throw out the pending lawsuits against it. Judges will have to decide whether the new executive order is enough to render existing litigation moot.
If the plaintiffs argue that the policies look too similar and maintain that the states could still be in jeopardy, the courts could keep the same cases going but adjust them to consider the new language.
“It depends both on the wording of the new [executive order] and whether Robart, or the appeals court, consider it sufficient enough to cure the issues with the old EO,” said Jay Holland, a civil rights attorney with Joseph Greenwald & Laake.
“Certainly, the administration will argue that the new EO supersedes the old EO upon which the courts ruled, and so there is no injunction in place to prevent its immediate implementation. The courts may disagree with that if the due process issues are not sufficiently addressed and if the discrimination and First Amendment issues remain.”
Washington Attorney General Bob Ferguson, who argued the case on behalf of the plaintiffs, signaled in an interview on ABC earlier this week that he would consider fighting any new executive order.
And based on the opinion from the appeals court, even a revised travel ban is likely to face constitutional questions about whether it’s discriminatory or violates due process rights.
“The States’ claims raise serious allegations and present significant constitutional questions," the judges said in their ruling.