New Trump Travel Ban Addresses Flaws, but Legal Questions Remain

Emily Cadei
New Trump Travel Ban Addresses Flaws, but Legal Questions Remain

Updated | As Trump administration officials on Monday laid out the details of the president’s revised executive order suspending travel to the U.S. from six Muslim-majority countries, one senior official insisted, “We want to stress at the outset there was nothing wrong with that first executive order itself.”

Tacitly, however, the replacement illustrates just how flawed the original was, as it resulted in snarled airports, angry allies and a storm of protest domestically and around the globe. The order was eventually halted in the courts, and even this rewrite may not keep President Donald Trump’s restrictions from being overturned again.

Related: Cabinet members lobby Trump to take Iraq off travel ban

Among the key changes from the order the president signed in January, which he himself has called a travel ban:

  • The list of targeted countries shrank from seven to six. While nationals and citizens of Sudan, Syria, Iran, Libya, Somalia, and Yemen are still barred from entering the United States for 90 days, Iraq is no longer included. This follows an outcry from military officials and complaints from the Iraqi government that the order could harm cooperation in the midst of a joint operation to retake the Iraqi city of Mosul from the Islamic State militant group (ISIS). A senior administration official told reporters during a conference call Monday morning that “we have received firm commitments from the government of Iraq over the last several weeks…about increased cooperation with the United States in terms of information sharing.”

  • There is a phase-in period. The new order, which Trump signed Monday, won’t take effect until midnight on March 16. The goal is to avoid repeating the scenes at airports that occurred after travelers in midair when the original order was signed January 27 arrived in the United States to discover their legal status was suddenly in doubt. “You should not see any chaos, so to speak, or any alleged chaos at airports,” the official promised. “There aren’t going to be folks stopped tonight coming into the country.”

  • People already granted green cards or valid visas from the six listed countries will not be barred from coming into the country. “This is all about the new issuance of visas,” the official explained.

  • The refugee resettlement program is still suspended for 120 days, but Syrian refugees are no longer barred indefinitely. Refugee travel that’s already been scheduled will not be affected. “We believe that no system is completely infallible, and while we have extensive vetting procedures already in place…we will work to improve our vetting procedures” over the three-month period, a senior State Department official told reporters.

  • The new order no longer prioritizes religious minorities in the refugee program, a provision in the original travel ban that appeared to favor Christians from the Middle East and bolstered the allegations of religious discrimination.

Administration officials from the State Department, Department of Homeland Security and Department of Justice also made a point of emphasizing they were all on the same page when it came to the content and implementation of the revised order. “There is no daylight between the White House and the executive departments,” insisted one senior official.

That certainly was not the case the first time around. The New York Times reported in January that Homeland Security Secretary John Kelly was just getting briefed on the details of the order as the president was signing it. The acting attorney general at the time, Obama appointee Sally Yates, ordered the Justice Department not to defend the order in court and was then fired by Trump.

On Monday, Kelly issued a lengthy statement praising the revised order. It “will make America safer and address long-overdue concerns about the security of our immigration system,” he said. “We cannot risk the prospect of malevolent actors using our immigration system to take American lives.”

Republican leaders in Congress were more muted in their support. In a short statement, House Speaker Paul Ryan said the order “advances our shared goal of protecting the homeland.” And House Homeland Security Committee Chairman Michael McCaul said in a statement, “I look forward to reading the details of the president’s new executive order and conducting oversight to ensure it is implemented smoothly”—suggesting he had not been given the details prior to its rollout.

On the left, the reaction was predictably scathing, with most critics saying the changes to the travel ban were just cosmetic. “A watered-down ban is still a ban,” Democratic Senate Minority Leader Chuck Schumer said. “Despite their best efforts, I fully expect this executive order to have the same uphill climb in the courts that the previous version had.” Amnesty International says it is planning a national day of action Tuesday, urging supporters in the U.S. to call their elected officials ask them to oppose the new executive order. 

A senior Justice Department official said Monday that the administration expects most of the legal challenges to the original order will be mooted by the new one. But as Schumer noted, this more circumscribed, orderly version still does not tackle some of the issues that prompted courts in Washington and California to issue a nationwide stay of the first order.

The White House has struggled to prove the order is necessary, for one. On Monday, officials released an FBI assertion that there are 300 open terrorism-related investigations of people who entered the United States as refugees. But they said number reflects the entire universe of people who at one point were refugees, not just people from the six countries targeted by the ban. And the Justice Department refused to provide further information or a breakdown of where the people under investigation hailed from or their current immigration status.

And while Trump administration officials have been emphatic that the travel restrictions are not targeting Muslims, they’ll continue to find it difficult to distance themselves from the president’s own statements. During the 2016 campaign, Trump repeatedly called for a Muslim ban, and a close adviser, Rudy Giuliani, told Fox News he helped the president come up with the contours of the order to put such a ban in place.

“This is not a Muslim ban in any way, shape or form,” one of the officials insisted Monday. “There are…hundreds of millions if not one-point-something billion Muslim individuals and followers of the Muslim faith who are not subject to this executive order, who are free to come to the United States through our visa and our admissions regime.” Moreover, the officials maintained that Trump has the legal authority, as president, to restrict immigration to protect Americans.

Those arguments did not hold water with the courts the first time around. It’s an open question whether the administration’s revisions will do anything to change that.

This story has been updated to include reaction from supporters and critics of the new executive order that the president signed Monday.

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