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‘See You in Court': These Legal Issues Could Kill Trump’s New Travel Ban

One of Trump’s biggest challenges? His own public statements

President Trump’s brand-new travel ban includes revisions to address arguments that it is actually a Muslim ban — and an unconstitutional one. But the changes won’t save the new executive order from constitutional challenges, according to immigration and civil rights lawyers who oppose it.

Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said today that the new ban “shares the same fatal flaws” as the original ban and President Trump “can expect continued disapproval from both the courts and the people.”   

As with his original order, Trump’s revamped executive order will continue to impose a temporary ban on all new visas and refugee permits for immigrants from predominately Muslim countries, although it will drop Iraq, targeting six countries instead of the original seven.

The revised ban also removes a preference for refugees who are religious minorities.  This provision favored Christians, which legal challengers claimed was religious discrimination against Muslims in violation of the First Amendment. 

Another change will be that federal immigrant officials will no longer block immigrants with green cards or refugee status.

In contrast, when the first order issued on Jan. 27, federal immigration officials immediately began blocking immigrants who had already obtained their visas and green cards from boarding planes bound for the United States, and detained and deported those with visas and green cards upon their arrival at U.S. airports.

 The Ninth Circuit Court of Appeals and some lower courts ruled that Trump’s Jan. 27 travel ban violated the First Amendment by discriminating against Muslims and violated due process by abruptly revoking previously issued U.S. visas and green cards, stranding hundreds of visa holders.

The Trump Administration suffered a major defeat when the Ninth Circuit affirmed U.S. District Court Judge James Robart’s nationwide temporary restraining order, halting enforcement of Trump’s first executive order.  

Immigration lawyers say that Trump’s changes to the executive order are not enough to remove its implicit bias against Muslims because the new order still targets six predominately Muslim countries and lacks a national security justification — because the order does not include the countries whose citizens carried out the 9/11 terrorist attack on the United States.

“This is nothing more than Muslim Ban 2.0,” Marielena Hincapié, executive director of the National Immigration Law Center, said today. “Trump’s Muslim and refugee ban remains fundamentally flawed. Our message to the Trump administration, both then and now, is this: We will see you in court.”

Two recently leaked internal Homeland Security memos spell trouble for the Trump Administration’s national security justifications for the new ban.

The memos, obtained by the Associated Press and MSNBC, suggest that the travel ban is not grounded in national security research. 

The Department of Homeland Security concluded in the confidential research memos that citizenship in the seven Middle Eastern countries listed in the first order is probably an unreliable indicator of whether immigrants and refugees from those countries are terrorists. 

These memos support the Ninth Circuit’s Feb. 9 conclusion that the first order was flawed because “no alien from any of the countries named in the Order has perpetuated a terrorist attack in the United States.”

A Department of Homeland Security official told the Washington Post today that the new order did not target Muslims.

But the allegations of Trump’s anti-Muslim bias will not go away, in part because of statements by Trump and former New York Mayor Rudy Giuliani, who has said publicly that Trump spoke with him about how to impose a “Muslim ban.”  As a candidate, Trump promised to temporarily stop Muslims from entering the U.S. 

The Trump Administration protested to the courts that these public statements should not be considered if the executive order did not expressly state a bias against Muslims. The Ninth Circuit disagreed.

Legal challengers say Trump can’t escape his “Muslim Ban” statements or the impact of the new ban. “The president has said he would ban Muslims, and this revised version — in these preliminary fact sheets — still does that, even if they have removed Iraq from the list,” said Gregory Chen, director of advocacy for the American Immigration Lawyers Association.

Even if visa and green card holders are exempt from the new order, the states of Washington and Minnesota, which won the Ninth Circuit order halting the first ban, probably will continue to argue that their public universities will be hurt by the loss of future foreign students and visiting foreign professors and scholars from the six countries, and that the order is biased against would- Muslim students, professors and scholars.

The Trump Administration probably will repeat its previous argument that federal courts have no right to examine the executive branch’s immigration and national security policies and therefore Trump’s executive order was “unreviewable” by the courts.

That argument did not sit well with the federal judges. As every first-year law student learns, the Supreme Court declared in 1803 in its landmark Marbury v. Madison decision that the Supreme Court has the exclusive right to decide whether laws violate the Constitution; the Court has the last word to “say what the law is.”

Trump’s “unreviewable” argument, the Ninth Circuit declared, “runs contrary to the fundamental structure of our constitutional democracy.” 

The three-judge Ninth Circuit panel – two appointed by Democratic presidents and one appointed by a Republican – issued an unsigned order, signaling solidarity on their decision. The judges were perhaps reacting to Trump’s Feb. 4 tweet calling Judge Robart a “so-called judge” after he issued the first nationwide stay of Trump’s travel ban.

Meanwhile, the Trump Administration is being forced to defend its original executive order in the Ninth Circuit. On Feb. 27, the court refused to grant the government’s request to delay the case while Trump revised his new order.

Susan Seager is a Los Angeles First Amendment attorney, an adjunct professor teaching media law and intellectual property at the University of Southern California, and columnist for Dan Abrams’ Law Newz. Before starting her own private practice, she was a vice president in the litigation department of Fox Entertainment Group in Century City, where she oversaw litigation involving Fox Television Stations, Twentieth Century Fox Film Corp., and National Geographic. Her areas of practice include defamation, privacy, right of publicity, copyright, reporter subpoenas, and SLAPP litigation. Before working for Fox, she worked as an attorney for Davis Wright Tremaine in Los Angeles. One of her recent articles for the American Bar Association Communications Lawyer was “Donald Trump is a Libel Bully but also a Libel Loser.”