President Donald Trump’s second executive order restricting immigration from six Middle Eastern countries is getting extreme vetting – at least in the legal community. Here’s a roundup of what scholars and pundits are saying about the revised order and its prospects in court.
The new executive order, called Protecting The Nation From Foreign Terrorist Entry Into The United States, replaces an order issued on January 27 that caused confusion and led to a national injunction in federal court. At least several court cases involving the first order are still active and it remains to be seen how the courts will handle the second executive order.
In previous weeks, President Trump said his second executive order would be tailored to satisfy concerns raised in federal court that led a Seattle-based federal judge to issue a national temporary restraining order and a Virginia-based federal judge to grant a local injunction.
The new executive order adds more classes of people directly exempt from temporary immigration bans, provides for case-by-case waivers and gives people affected by the ban 10 days’ notice before the ban’s provisions go into effect on March 16. The order also recognizes that all green-card holders, dual citizens and current valid visa holders are exempt from the travel ban, and Syrian nationals are included in a 120-day refugee ban.
It is also clear that the new order was written to counter arguments in several federal courts that the original ban’s intent was to target Muslim-majority countries. But the six countries targeted in the new order are all Muslim-majority nations.
Here’s a quick look at opinions from parties in the cases and some legal experts on both sides of the issue.
Washington state (which sued and won in round one in the Ninth Circuit)
Washington Attorney General Bob Ferguson is evaluating the new order but also claimed victory on Monday after noting that Trump tweeted out that federal government would see Ferguson in court. “It bears pointing out that the administration since that tweet has done everything in its power to avoid seeing anyone in court. … There is a reason for that: The president was essentially afraid to see us in court because he knew he would lose again.”
The Justice Department
“The Department of Justice believes that this executive order, just as the first, is a lawful and proper exercise of presidential authority. This Department of Justice will defend and enforce lawful orders of the President consistent with core principles of our Constitution. 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,” said Attorney General Jeff Sessions.
The ACLU (which is fighting the order in court)
“The Trump administration has conceded that its original Muslim ban was indefensible. Unfortunately, it has replaced it with a scaled-back version that shares the same fatal flaws. The only way to actually fix the Muslim ban is not to have a Muslim ban. Instead, President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project.
Mark Krikorian, Center for Immigration Studies
“The whole executive order is a temporary measure. You can make policy arguments against it. I don’t think the specifics are nearly as important as the broader question, which is, do the people’s elected representatives get to decide who comes into the United States, or do judges get to decide on their own,” said Krikorian on public radio. He also believes the list of countries could be expanded. “This is all explicitly provided for by Congress, so that the President can exclude any class of foreigners from coming into the United States for any reason he wants. Judges are acting lawlessly if they are attempting to interfere with this, unless they are asserting that Congress acted unconstitutionally. That’s the only argument they can make, and no judge has made that argument.”
Stephen Wasby, State University of New York In Albany
“It’s possible that enough clarification was put in this document that it would now satisfy a judge who was generally deferential to the executive,” Wasby, a political scientist, told Bloomberg News.
David Bier, Cato Institute
“Overall, the changes are certainly substantive,” Bier told Politifact. “Any order that applies to fewer people, especially fewer people with strong U.S. ties, will be more likely to withstand judicial scrutiny. But I don’t think that the new order resolves all of the legal problems.”
Stephen Yale-Loehr, Cornell University Law School
“U.S. relatives will still sue over the inability of their loved ones to join them in the United States,” Yale-Loehr also told Politifact. “U.S. companies may sue because they cannot hire needed workers from the six countries. And U.S. universities will worry about the impact of the order on international students’ willingness to attend college in the United States.”
John Eastman, Chapman University and the Claremont Institute
“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,” Eastman said in a blog post.
Erwin Chemerinsky, UC Irvine School of Law
“Travel ban 2.0 is slightly better than 1.0; at least it respects those who already have a lawful right to entry. But I expect that courts across the country will recognize that it contains many of the same flaws, and find it unconstitutional,” said the law school dean.
Kansas Secretary of State Kris Kobach
“I think this order, if it were challenged in the Ninth Circuit, it would be the most activist judicial venue for it, I think it will survive. And, of course, if it survives the Ninth Circuit, it will survive anywhere else too,” Kobach, a Trump supporter, told PBS.
Neal Katyal, former Acting Solicitor General under President Barack Obama
“There are some changes. In this new executive order, it does say: We don’t intend to discriminate against Muslims. But the Supreme Court has been very clear that just because a government says that — they can always say, we don’t intend to discriminate on the basis of religion. You have to go back to look at the history of this. And if it’s a pretext for discrimination, as this sure looks like, then it is going to fall in the courts for that reason,” said Katyal, appearing on the same PBS segment as Kobach.