More than two weeks ago — and less than 30 minutes after a federal appeals court refused to reinstate his travel ban — President Donald Trump signaled he was poised to act quickly.
“SEE YOU IN COURT,” he tweeted in all caps.
But that go-fast approach seems to have been eclipsed by lawyers at top levels of government going back to the drawing board and taking a very close and cautious look at the legal issues involved.
One reason for the slowdown is the strong admonition from the three appellate court judges who castigated the government for failing to provide the court with any national security information justifying the ban — even under seal.
In a blunt footnote, the judges on the Ninth Circuit Court of Appeals said that while the government “identified the seven countries in the executive order as countries of concern in 2015 and 2016,” it had not “offered any evidence or even an explanation” for how the national security concerns justified an “urgent need” to reinstate the executive order.
Trump said later that his administration was working on something that would be tailored to the concerns of the court — although the precise details are still under wraps.
In an appearance in Munich on February 18, Homeland Security Secretary John Kelly suggested that the President was contemplating “releasing a tighter, more streamlined version of the first executive order” that would pass muster with the court and ease due process concerns because it would have a built-in roll out plan aimed at diminishing the chaos caused after the first order was released.
One source confirmed the rollout plan to CNN and reiterated that government lawyers believe it should withstand legal scrutiny because it will make clear that the travel ban will not impact green-card holders. The source said that another section suspending the entry of Syrian nationals as refugees could be modified or even cut, as well as a different section that arguably prioritizes certain religious minorities.
Yet White House press secretary Sean Spicer has continuously floated a “dual-track thing,” suggesting that the Trump administration would not formally revoke the initial executive order but instead issue a new one that would comport with the law and target national security concerns for now, while also continuing the appeals process to defend the original order.
“We’ve been working very closely,” Spicer said on February 21, “to make sure that the next step achieves the President’s goal of protecting the country and does so in a way that recognizes the concerns that the court had until we prevail at a later time — so it’s a dual-track thing.”
“We were right the first time,” he added at Monday’s press briefing, explaining that the Trump administration does not want to drop its defense of the original executive order unnecessarily in the event it ultimately wins in court.
How this will work in practice, however, remains to be seen, because if the new executive order accomplishes what the White House claims, then it could conflict with language in the original travel ban and the administration will be forced to explain its reasoning.
For example, Section 5(b) of the current executive order — which remains on hold for now — arguably prioritizes the refugee claims of certain religious minorities. But if the new executive order strikes all or part of Section 5, how will the administration defend keeping that provision in the pending lawsuits over the first executive order?
In other words, legal experts question how the Justice Department will be able to successfully argue that provision is indispensable for national security in one court when the plaintiffs will be able to point to a new executive order in which it is missing or modified.
Continued litigation over the original executive order will be further complicated by the fact that it remains blocked by several different federal courts, in different ways and on different grounds.
For instance, a federal district court judge in Virginia blocked only Section (c) of the current executive order that stops foreigners traveling from seven Muslim-majority countries — whereas US District Court James Robart in Seattle additionally blocked Sections 5(a), (b), (c) and (e), which deal with refugee admissions to the US.
Moreover, what happens to those traveling on student or work visas remains a sticking point.
More fights ahead
Regardless, challengers are gearing up for new legal fights ahead.
New York Attorney General Eric Schneiderman told reporters Monday that “if it is a ban similar to the last ban, then we’ll probably be in court fighting it again.”
“If (Trump) comes out with something completely different, then we’ll have to take a look at it,” Schneiderman explained. “If it is similar to the last ban, I think you can look to see the same folks rising up in opposition.”
Others doubt how the ban can be fixed at this point.
“Trump’s refugee and Muslim ban is fundamentally, constitutionally flawed, and no number of ‘tweaks’ will fix that,” Marielena Hincapié, executive director of National Immigrant Law Center, told CNN. “For months before he assumed office, Trump made his discriminatory intentions against Muslims and refugees clear. (We) will continue to fight — in the courts if necessary — against this ugly policy.”
ACLU attorney Lee Gelernt who handles the federal lawsuit in New York lawsuit echoed similar concerns.
“Exempting lawful permanent residents and current visa holders will not cure the core legal problem — that the ban was motivated by religious discrimination, as evidenced by the President’s repeated statements calling for a Muslim ban.” Gelernt explained. “That discriminatory taint cannot be removed simply by eliminating a few words or clever tinkering by lawyers.”