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Analysis

Legal experts: Trump's revised ban is less restrictive, but will still face suits

By DAVID VOREACOS, BOB VAN VORIS AND KARTIKAY MEHROTRA | Bloomberg | Published: March 6, 2017

President Donald Trump lost the first round of a bitter fight to impose a targeted travel ban. Now comes round two.

After federal courts blocked the president's initial order barring people from seven mostly Muslim nations from entering the United States, the administration will now confront fresh legal challenges over a second, somewhat less restrictive ban, legal experts said.

The overarching question is whether the revised order, announced Monday, can withstand some of the same legal challenges that doomed the first, including whether it unlawfully discriminates based on religion. Those questions may ultimately be decided by the U.S. Supreme Court, the experts said.

Trump replaced his Jan. 27 order by dropping Iraq from the list of predominantly Muslim countries whose citizens are barred from entering the U.S. for 90 days. While the revised order halts admissions of refugees for 120 days, it no longer bans Syrian refugees indefinitely, nor does it favor Christians. Permanent legal residents, also known as green-card holders, and travelers with a valid visa are exempt from the new order.

In issuing the revised order, the administration provided significantly more detail, including a question-and-answer document that provides a rationale for the travel ban and guidance for travelers who might be impacted.

But even with the overhaul, advocates for immigrants say Trump's latest attempt to control entry to the country remains a disguised ban on Muslims, despite his statements that he only wants to keep the U.S. safe by vetting people from nations with a history of terrorism.

"The core problem will still remain, which is the travel ban is based on religious discrimination," said Lee Gelernt, an attorney for the American Civil Liberties Union, which spearheaded lawsuits around the U.S. and won temporary reprieves from the original order. New York Attorney General Eric Schneiderman, who sued over the original travel ban, issued a statement Monday saying he is ready to challenge the new order too because "the intent to discriminate against Muslims remains clear."

Like the order it replaced, the revised directive doesn't mention Muslims or Islam in singling out citizens of Syria, Iran, Yemen, Sudan, Libya and Somalia for a 90-day ban. But that didn't stop judges from blocking Trump's first order.

Lawyers challenging the order claimed it was intended to target Muslims in violation of the Constitution's Establishment Clause, which forbids the government from favoring one religion over another, and the Equal Protection Clause, which prevents discrimination against people based on their religion.

The Ninth Circuit Court of Appeals in San Francisco in February didn't decide whether the order discriminated on the basis of religion. Rather, the court disputed the government's claim that it had fulfilled its obligation to justify the ban under another area of the law. Among other things, it said that Trump's lawyers failed to show that immigrants from the targeted nations ever carried out a terror attack on U.S. soil.

The administration appeared to address the appellate court's concerns in issuing the revised order, noting that 300 refugees were being investigated for terrorism, and it vowed to issue reports every six months about foreigners being charged with terrorism-related offenses.

In another case, U.S. District Judge Leonie Brinkema of Virginia went beyond the Ninth Circuit's ruling to consider statements by Trump during his presidential campaign and by former New York Mayor Rudolph Giuliani in concluding that the intent was a Muslim ban.

"A person is not made brand new simply by taking the oath of office," Brinkema said in a Feb. 13 opinion. "The 'Muslim ban' was a centerpiece of the president's campaign for months."

Josh Blackman, a professor at the South Texas College of Law in Houston, said the courts would be wrong to elevate comments by Trump and others over official statements in presidential documents, such as the travel ban order.

"There's no precedent for that," Blackman said.

Trump didn't mention religion in discussing the travel ban in his Feb. 28 address to Congress. Rather, he said it was "reckless to allow uncontrolled entry from places where proper vetting cannot occur."

Those entering "should support this country and love its people and its values. We cannot allow a beachhead of terrorism to form inside America -- we cannot allow our nation to become a sanctuary for extremists," the president said.

The first directive created chaotic scenes at airports by revoking visas of about 60,000 people already approved to visit the U.S. for work, study or travel.

By dropping those with green cards and visas, Trump's new order made "significant changes that narrow the scope" of reasons to sue, said Blackman. That change renders moot the legal claims of people with the strongest argument that their Constitutional right to due process of law -- the right to a fair hearing before being deprived of property or rights -- was being violated.

While the U.S. Supreme Court has made clear that non-citizens, legal or not, are entitled to due process when in the country, the Constitution doesn't protect people in other countries with no ties to the U.S.

Some supporters of Trump's efforts to tighten control of the borders questioned the motives of U.S. judges.

"They're acting politically, not judicially," said Mark Krikorian, executive director of the Center for Immigration Studies, a Washington-based think tank. "The fight is really about whether judges get to decide who comes into the United States, or elected officials do."

The Trump administration is defending the new order, as it did the old one, by pointing to the president's broad authority to suspend any class of aliens whose entry would be "detrimental to the interests of the United States."

With lawsuits pending around the U.S. over the first travel ban, the Trump administration may argue that they are no longer relevant. But Gelernt said the ACLU will continue to seek information on the 746 people it said were excluded by that ban.

"The Trump administration has conceded that its original Muslim ban was indefensible," said Omar Jadwat, director of the ACLU's Immigrants' Rights Project, in a statement. "Unfortunately, it has replaced it with a scaled-back version that shares the same fatal flaws."

Anil Kalhan, associate law professor at Drexel University in Philadelphia, who specializes in immigration law, says plaintiffs could ask that existing lawsuits be amended to include the revised ban.

"They're not really conflicting policies," he said. "There may be some people who are no longer affected, but they're challenging the same set of underlying facts."

Bloomberg's Erik Larson and Patricia Hurtado contributed.
 

President Donald Trump gestures during his first address before a joint session of Congress in February, 2017.
JONATHAN NEWTON/THE WASHINGTON POST

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