New immigration ban order will still face legal challenges

With a revised immigration ban executive order to be announced this week, the Trump administration hopes to avoid another legal entanglement. But based on the words of the judges and parties involved in the dispute, more controversy is likely to follow a new order.

Last week, President Donald Trump said at a press conference the new executive order would be written to address the concerns expressed by the Ninth Circuit Appeals Court, which upheld a temporary restraining order against the original immigration ban executive order issued last month.

The executive order directed federal agencies to issue a 90-day suspension of entry into the United States for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order also barred entry of all refugees into the United States for 120 days, and it barred Syrian refugees indefinitely.

"The new order is going to be very much tailored to what I consider to be a very bad decision," Trump said. "We had a bad court." Over the weekend, Department of Homeland Security head John Kelly said the new order would be “streamlined” and it would "make sure that there's no one caught in the system of moving from overseas to our airports."

Several media outlets have published some details of a draft version of the new order. The Associated Press and other say the new order will make it clear that lawful permanent residents, or green card holders, are exempt from the executive order, as well as dual citizens. There were also reports the order would drop a provision that allows government officials to allow exemptions for “religious minorities” in countries placed on the temporary immigration ban list. And it’s unclear what happens to valid visa holders.

The reports also said that the seven Muslim-majority Middle East countries targeted in the original ban will still have temporary immigration restrictions imposed on them. There were no detailed reports about how the new executive order will deal with refugees seeking asylum in the United States.

For now, various lawsuits about the original immigration ban are on hold. The Ninth Circuit Appeals Court is waiting for the new executive order to be announced. The case remains active in the Seattle-based federal court of Judge James Robart and the Virginia-based federal court of Judge Leonie Brinkema. Legal experts fully expect the parties who sued the Trump administration in those two jurisdictions will keep taking legal action regardless of a new executive order.

“As long as there continues to be a ban, we will pursue our lawsuits,” ACLU official Lee Gelernt told Politico on Monday. “The discrimination that spurred the ban doesn’t simply disappear by the removal of a few words.”

The parties that succeeded in the Ninth Circuit and two lower federal courts will likely protest the new order based on arguments that had already won in court in broad terms. One primary argument will be that the orders are bans specifically aimed at Muslims, which would violate the First Amendment’s Establishment Clause. The Trump administration has repeatedly argued there has been no religious bias in the orders.

The Ninth Circuit didn’t rule specifically on the religious discrimination issue – it wanted to hear arguments about that first – but it did say that President Trump’s prior comments on a Muslim ban could be considered in the case. “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims,” the three Judges wrote.

In Robart’s decision, which was appealed to the Ninth Circuit Court, he also didn’t directly say that the Trump administration violated the First Amendment. But Robart concluded that Washington state and Minnesota were likely to succeed in court with their claims against the Trump administration. In Virginia, Leonie Brinkema left little doubt that she thought the executive order was a Muslim ban.

Brinkema said the order “was not motivated by rational national security concerns” but “religious prejudice.” She also challenged the Trump administration to show evidence of a need for the ban and rejected claims the executive order was justified solely because it came from the President.  “Maximum power does not mean absolute power,” Brinkema said. “Every presidential action must still comply with the limits set by Congress’s delegation of powers.”

The government’s lawyers, at least in the Ninth Circuit, had countered those arguments in various ways, arguing the immigration power lies in the hands of Congress and the President, and not the courts, and that the Immigration and Naturalization Act clearly gives the President the ability to restrict immigration as a national security measure.

It remains to be seen what new arguments will be made to defend the new executive order, if and when it gets its own day in the federal court system.

Scott Bomboy is the editor in chief of the National Constitution Center.