The initial executive order out of President Trump’s White House regarding limiting immigration to the U.S, widely known as the “Muslim Ban,” was an unmitigated disaster. Rolled out overnight, the order caused chaos across the country as agencies tried to put the order’s new rule into force. It also drew immediate legal challenges from numerous states, all challenging the order-in whole or in part-as unconstitutional. Several of these legal challenges succeeded; most notably a challenge out of the state of Washington which culminated in a preliminary injunction–an order preventing the “Muslim Ban” from taking effect whatsoever until the Washington case is fully litigated. In the face of court order saying that the order was most likely unconstitutional, and the fallout of the original implementation of the order, President Trump did something we perhaps should all have expected-he signed and put into force a nearly identical order. On Monday, March 6th, President Trump issued an executive order titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into the United States.”
In the past we’ve already covered the effects of the ban, the constitutional problems intrinsic to the ban, the many lawsuits brought after the ban was passed, and the injunction which ultimately put an end to it. So with that in mind, you’ve got to know that we’ve got some thoughts about Trump’s second iteration of the ban. So without further ado, lets dive into it–the changes between this new order and the original order courts ruled to be likely unconstitutional, the chances that this order will stand, and the legal challenges the order already faces.
How is This Order Different From the One Courts Already Stopped?
The short answer, it isn’t very different. The order still targets specific Muslim majority countries, barring immigration from those countries for 90 days. It also still cuts the number of refugees allowed to be admitted to the U.S. per year by more than half. However, with this being said, there are some important changes in effect from the initial order–mostly designed to make the order appear more kosher to the courts.
The new version of the order has removed the indefinite ban on the U.S. taking in any refugees out of Syria. Instead, the order includes a 120-day freeze on taking in those refugees. However, the order also includes the ability to renew the ban for a longer period of time upon review. It also doesn’t include any limits on the number of times the ban can be renewed, so in effect the ban could very well be indefinite.
The order also has removed Iraq from the original list of countries slapped with a 90-day immigration ban, leaving only the other 6 original countries. The reason for this change is a request from the Defense Secretary, fearing that such a ban would injure the U.S.’ ongoing efforts to fight ISIS in Iraq. The order doesn’t take a ban on immigration out of Iraq off the table though, threatening to put the country back on the list if Iraq’s leaders don’t increase their amount of intelligence they share with the U.S.
The new crack at the ban also has eliminated language specifically offering preferential immigration status to “persecuted religious minorities.” This was one of the most widely criticized elements of the order, both by the public and in legal challenges to the order. The thought being that the provision was designed to favor other religious groups over Muslims.
As opposed to the frenetic same-day introduction of the last immigration ban, the Trump administration has allowed for a slower implementation and time to prepare for implementation. The ban only goes into effect ten days after its signing–March 16.
The order has a number of other changes. The order includes specific details about why the six countries hit with the 90-day ban were selected; presumably to strengthen the order against the many legal challenges saying the order was targeting countries based on their Muslim majority. The order focuses its details sections on the statistics regarding terrorism for each country selected. The order also no longer affects current visa holders or refugees already granted asylum.
So you’ve likely noticed that these changes are, intentionally, targeted at trying to make the order stand up to the scrutiny of the courts. In order to determine whether it has succeeded, let’s look at why the last order got hit with an injunction.
Why Was the Last Order Blocked?
Since we’ve covered this issue in previous articles, we’ll keep the discussion of why the last order couldn’t pass constitutional muster on the short side.
A preliminary injunction is granted where the party seeking it can show that they are likely to succeed in their arguments, there would be irreparable harm if the thing they seek to stop isn’t stopped immediately, there isn’t a public interest against granting an injunction, and the party seeking the injunction will be more harmed by what they seek to stop than the party you’re bringing the injunction against will be harmed by the injunction itself. In the case brought by Washington, the court ruled that they were likely to succeed in their arguments that the immigration ban unconstitutionally singled out targets based on religion or national origin–in other words the order discriminated likely discriminated against protected classes.
Will the New Order Stand Up in Court?
The White House certainly believes its changes, although extremely minor in practice, are enough to allow the order to pass muster. In fact, the Department of Justice has already filed briefs saying that the revisions have rendered all the legal cases regarding the first order moot. In other words, the injunction has no further effect and the new order must be challenged or not on its own merits.
However, as of March 9th, Washington state lawyers have taken the stance that the changes are so minor as to amount to essentially putting lipstick on a pig. They argue that the prejudicial purpose behind the order remains and its most offensive portions are essentially untouched. For this reason, they’ve asked the federal judge who placed the preliminary injunction on the original order to expand his order to cover the “Muslim Ban 2.0.” A similar attempt to challenge the ban has been brought by Minnesota and Hawaii. The Attorney Generals for Massachusetts, New York, and Oregon have all made it known that they intend to join in on the challenges brought by Hawaii, Minnesota and Washington.
So will the new and improved “Muslim Ban” stand up? We’ll have to see how the courts rule. However, the order has changed very little in actual effect. It still targets specific nationalities in almost exactly the same manner and it still exclusively targets Muslim majority countries. The same reasons it was likely unconstitutional before are all still there. Even if the order itself has removed some of the language making obvious attempts to target Muslims and provided an alternate explanation, Trump’s own statements on immigration and the previous order still can be used as evidence of the discriminatory purpose to the new order.
Nothing in law is ever truly certain, but the definition of insanity is doing the same thing and expecting different results. The new ban is very similar to the previous order, it seems unlikely that it will pass constitutional muster with such minimal changes.
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