After a federal appeals court unanimously refused to immediately reinstate his travel ban last month, President Donald Trump tweeted a warning: “SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE!”
The courts never did get to decide the full merits of that case before Trump replaced the travel ban Monday with a much narrower version — one supporters say is well within his authority, but which critics say is more palatable but still problematic.
“Bottom line is the president has capitulated on numerous key provisions that we contested in court about a month ago,” Washington Attorney General Bob Ferguson, who led the legal challenge to the initial ban, told a news conference Monday.
But the original ban was motivated in part “to target predominantly Muslim countries,” Ferguson said, adding, “We still have concerns about that intent.”
The new ban temporarily bars new visas for citizens of six predominantly Muslim countries — one fewer than the original, with Iraq removed from the list. It also suspends the entire U.S. refugee program.
The measure applies only to refugees who are not already on their way to the United States and people seeking new visas. It removes language that gave priority to religious minorities. Critics said the language was designed to help Christians get into the U.S. and to exclude Muslims.
Ferguson and Virginia Attorney General Mark Herring, both Democrats, said they were evaluating whether to bring further legal challenges before the new order takes effect March 16. Although the order is scaled back, “it still sends a horrible message to the world, to Muslim-Americans, and to minority communities across the country, without any demonstrable benefit to national security,” Herring said.
The American Civil Liberties Union promised “to move very quickly” to try to stop the order.
Nevertheless, the changes will make it “much, much tougher” for a federal judge to block the ban, said New York immigration attorney Ted Ruthizer.
Courts could find it compelling that the order does not cover all Muslims from all countries, he said. And judges have a history of upholding portions of immigration law that discriminate on the basis of race and nationality when national security is an issue.
“There’s still the argument that, when you take down all the window dressing, it’s still a religion ban, but these are the kinds of nuances that the courts will look at,” Ruthizer said.
Stephen Yale-Loehr, an immigration law professor at Cornell University Law School, said that even if the new order is on more solid legal footing, it “will not quell litigation or concerns.”
“U.S. relatives will still sue over the inability of their loved ones to join them in the United States,” he said. “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.”
Top Republicans welcomed Trump’s changes. Sen. Orrin Hatch of Utah said the revised order makes significant progress toward what Hatch called for after the first version: to avoid hindering innocent travelers or refugees fleeing violence and persecution.
House Speaker Paul Ryan said the order “advances our shared goal of protecting the homeland.”
Massachusetts Attorney General Maura Healey, who supported the court challenge, described the updated ban as “a clear attempt to resurrect a discredited order and fulfill a discriminatory and unconstitutional campaign promise.”
Texas Attorney General Ken Paxton, who backed the first ban, said in a statement that the president had the authority to secure the nation’s borders “in light of the looming threat of terrorism.”
A spokesman for the 9th U.S. Circuit Court of Appeals, which upheld a Seattle judge’s restraining order in the Washington case, said the court was evaluating the new executive order’s effect on the existing case. The Justice Department filed papers Monday in federal court in Seattle arguing that the restraining order should not block the new ban from taking effect.
Critics said the new order failed to address their concerns that the measure attempts to enact the Muslim ban Trump advocated during his campaign. Washington state, joined by Minnesota, argued that the original order violated the First Amendment’s separation of church and state.
The 9th Circuit’s ruling did not deal with that argument, but the court said it would evaluate it after further briefing. The states’ claims “raise serious allegations and present significant constitutional questions,” the judges wrote.
Larry E. Klayman, a founder of and lawyer for the conservative group Freedom Watch, supported the original ban when it was before the appellate court and called the new version “quite modest.”
“Right now, we’re in a state of war with certain countries, and this is a reasonable approach to it,” Klayman said.
Additionally, a question remained over whether the new ban conflicted with federal immigration law, said Jorge Baron, executive director of the Seattle-based Northwest Immigrant Rights Project. His organization filed a class-action complaint over the initial ban and said it would amend its arguments in light of the new one.
“Our immigration laws specifically say you cannot discriminate on basis of nationality in this process,” Baron said. “The president can’t rewrite the law by executive order.”