Trump team opens defense of new immigration limits

Making the first defense in court of President Trump’s revised executive order limiting immigration from Mideast nations, the Administration’s lawyers have argued that they have met all of the legal objections to the policy and so should be allowed to put it into full effect nationwide after midnight Wednesday.

Photograph of a U.S. Department of Homeland Security logo.

In filings in federal courts in Hawaii and Maryland, likely to be duplicated Tuesday in a federal court in Washington State, the government team on Monday contended that state government and immigrants’ rights organizations have no right to have the new presidential directive stopped in its entirety all across the nation.

If any individual U.S. citizen or foreign national can prove that they or their family would be harmed by any specific provision of the travel restrictions, the new briefs said, they could file their own challenges in court and have them decided one at a time.  The new order, the documents said, gives government officials wide authority to grant waivers of the restrictions on a case-by-case basis. That is the only option open, without interfering with the president’s broad power to decide who can and who cannot enter the U.S. from overseas, according to the filings.

In rewriting the original restrictions that had been blocked in court last month, the government lawyers said, they had “addressed the possible scenarios” that had concerned the courts, and those changes have eliminated “any occasion to consider emergency relief” in the form of a temporary enforcement ban.

“Aliens subject to the order face no injury unless and until they are denied a waiver,” the filing added. The new order, it said, “applies only to aliens outside the United States who lack a visa – individuals who have no constitutional rights regarding their admission.”

The revision has eliminated “any preference for religious minorities,” the government document said in attempting to counter the challengers’ claim that the new order, like the first one, amounted to “a Muslim ban.” Both orders were aimed at stopping immigration from a list of Mideast nations, each of which has a Muslim majority population.   The original order had seven nations on the list; one of those, Iraq, was dropped in the new order.

The challengers argue, the briefs said, that the revised order “targets Islam not because of what it says or does, but because of ‘inferences’ they claim can be drawn” from the background of the original version and statements by President Trump and his associates, “mostly before taking office.”  The order clearly states a non-religious purpose – countering terrorism – so such statements about a Muslim ban cannot displace that purpose, the briefs said.

“Searching for governmental purpose outside official pronouncements and the operative terms of governmental action is fraught with practical pitfalls and hazards that courts should avoid,” the federal lawyers argued.

Federal judges in Hawaii and Maryland have schedule hearings for Wednesday on the challenges in their courts, hours ahead of the planned implementation of the new order just after midnight.   No hearing has yet been set in the Washington State case.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on,.

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