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Donald Trump’s new travel ban less restrictive but likely to face suits

LiveMint logoLiveMint 07-03-2017 David Voreacos

Newark/New York/San Francisco: On the day that President Donald Trump unveiled a revised and less restrictive travel ban, immigration advocates across the country began preparing a second round of legal challenges to what some described as a watered-down version of the original.

Even with the overhaul, activists say Trump’s latest attempt to control entry to the country remains a disguised ban on Muslims, despite his statements that he wants only to keep the US safe by vetting people from nations with a history of terrorism.

“We believe that the revised executive order continues to be a Muslim ban,” said Lee Gelernt, an attorney for the American Civil Liberties Union, which spearheaded lawsuits against the original order and pledges to attack the new one. “The revised order eliminates certain problems, but not the core constitutional problem, which is religious discrimination.”

Uber Technologies Inc. was among the technology companies that opposed the revised ban. “Our sentiment has not changed: President Trump’s immigration ban is unjust and wrong,” the company said.

Dropping Iraq

Trump replaced his 27 January order by dropping Iraq from the list of countries whose citizens are barred from entering the US for 90 days. While the revised order halts admissions of refugees for 120 days, it no longer bans Syrian refugees indefinitely and doesn’t favour Christians. Permanent legal residents, also known as green card holders, and travelers with a valid visa are exempt.

In issuing the revised order, the administration provided more detail, including a rationale for the travel ban and guidance for travelers who might be effected. But it’s unclear if the new order will pass legal muster.

“It’s possible that enough clarification was put in this document that it would now satisfy a judge who was generally deferential to the executive” on immigration policy, said Stephen Wasby, a legal scholar at the State University of New York in Albany.

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

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

New York Attorney General Eric Schneiderman, who sued over the original order, said he is ready to challenge the new order too because “the intent to discriminate against Muslims remains clear.” Washington Attorney General Bob Ferguson, who also attacked the original ban, said his office was reviewing the order.

“There’s still a temporary ban on the refugees coming into the United States, and that’s still an area of concern for us,” Ferguson said.

California Attorney General Xavier Becerra called Trump rescinding his earlier order a “major victory.” He and other Democratic leaders, including Virginia Attorney General Mark Herring, said they were reviewing the new order.

Appellate concerns

A federal appeals court 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. The court said Trump’s lawyers failed to show that immigrants from the targeted nations ever carried out a terror attack on US soil.

The administration sought to address those concerns in the revised order, explaining why each of the six countries was included. It noted that 300 refugees were being investigated for terrorism without offering details.

US District Judge Leonie Brinkema of Virginia said in a 13 February ruling that statements by Trump during his campaign and by former New York Mayor Rudolph Giuliani indicated the initial intent was a Muslim ban.

“The ‘Muslim ban’ was a centrepiece of the president’s campaign for months,” Brinkema said.

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.

The first directive created chaotic scenes at airports by revoking visas of about 60,000 people already approved to visit the US for work, study or travel. The revised order takes effect 16 March, a slower roll out that is likely to avoid some of the upheaval caused by the first.

By excluding those with green cards and visas, Trump’s new order made “significant changes that narrow the scope,” Blackman said. That renders moot the legal claims of people with the strongest argument that their right to a fair hearing and other due process protections was being violated.

Due process

While the US 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 US, like refugees.

“The biggest issue raised by the courts and elsewhere was the due process concerns of people who had already received a legal right to be in the United States,” said Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation. “This order makes it clear it doesn’t apply to any of those folks.”

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 US. In filings Monday in courts around the country, the administration said the new order resolves the concerns of the opponents who challenged the original.

Stephen Yale-Loehr, a Cornell University law professor, said the revised order makes important changes, like exempting green card and visa holders. But he said it still assumes travelers and refugees from six Muslim majority countries are a security risk.

“The revised executive order is old wine in a new bottle,” he said in a statement. “The immigration controversy will continue.” Bloomberg

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