Donald Trump signed a new executive order on Wednesday in an attempt to reset the terms of, and the legal fight over, his January order to indefinitely ban Syrian refugees and temporarily ban all other refugees and travel from seven predominantly Muslim countries.
How is the new order different?
The new order formally cancels the first, and tries to resolve legal problems raised by it. It narrows the countries down to six – Syria, Sudan, Yemen, Iran, Somalia and Libya. It explicitly exempts people with valid visas and green cards from the order, and says that Syrian refugees will not be treated differently than other refugees. Unlike the original, the order also makes clear that US agencies will review case-by-case exceptions.
The new order removed a provision that gave priority to religious minorities in their home countries – a section that opponents linked to the president’s stated preference for Christian refugees – but also defended it, saying: “That order was not motivated by animus toward any religion.”
The order is set to take effect on 16 March, at which point it would, barring challenge, suspend the refugee program for 120 days.
The changes to the order appear designed to limit the legal challenges that can be made against it. While many challengers to the original ban were people with valid visas who had been denied entry or had their visas revoked, those people are now exempted by the ban.
Where did the case stand in courts before Monday?
The order was suspended. After chaos at airports and lawsuits nationwide, a federal judge in Seattle ordered a nationwide suspension of the order, and his ruling was upheld by a federal court of appeals. Attorneys for the justice department then failed to convince appeals court judges that the ban should be reinstated because of national security concerns. In a unanimous ruling, the three judges acknowledged the president has broad discretion on immigration but rebuked the administration’s claim that it had “unreviewable authority”. The judges also questioned the administration for failing to provide evidence of its national security concerns.
On Twitter, the president told the ninth circuit judges he would “see you in court”, seeming to suggest he would take the case to the supreme court. He did not.
What is the administration’s rationale for the order?
The justice department argues that the order is motivated by concerns for national security. At a press conference Monday, the attorney general, Jeff Sessions, said 300 refugees were currently under counter-terror investigation by the FBI, but he did not say whether those people were from the six countries or whether there were any findings of wrongdoing in those cases. Homeland security secretary John Kelly recalled the 9/11 attacks, though the hijackers involved in that attack were from Saudi Arabia, Egypt, the United Arab Emirates and Lebanon.
The executive order bases its argument on conditions in the listed countries: the presence of “active conflict zones”, eg in Somalia, Yemen, Libya, Sudan and Syria, and/or a country’s status on the state department’s list of sponsors of terrorism, eg Iran, Syria and Sudan.
In a fact sheet, the administration also claims, without examples, that the US immigration system “has been repeatedly exploited by terrorists and other malicious actors who seek to do us harm”.
The order itself does not claim that people from the listed countries have exploited the US’s immigration system, but says that the expanding presence of terror groups in these countries “increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States”.
What are the likely legal challenges?
The case will almost certainly wend its way toward the supreme court, around the questions of the president’s intent, unlawful discrimination and the scope of his powers over immigration.
Administration lawyers have so far struggled to make the president’s case that national security is the central issue, and judges have expressed frustration with the justice department’s slow, faltering and shifting arguments – which contrast with its claim that the order is urgently necessary. Judges have also, however, expressed willingness to defer to the president on immigration, and the new order has many exemptions that repair glaring weaknesses in the original.
The Cornell law professor Stephen Yale-Loehr told the Guardian that the new order would “make it tougher to win in court” against the measure, noting that the government now included paragraphs about security risks of each of the affected countries.
Yale-Loehr also said the narrower scope of the law might make it more difficult for affected people – foreign nationals – to challenge the law in US courts. He said challengers would have to rely on American citizens and businesses, for instance someone who alleged their rights were violated because a loved one was denied a visa, or a company barred from hiring someone.
In the first round of challenges, several states were granted standing to sue. The federal judge who suspended the original order found that the original order “adversely affect[ed]” state residents’ “employment, education, business, family relations and freedom to travel”.
On the question of intent, Trump’s past statements, for instance about a “complete and total shutdown of Muslims”, may yet return to haunt him. Challengers have argued that these claims, along with an “arbitrary” selection of countries and the provision about minority religions, show an intent to discriminate by religion that violates the first amendment.
“Certainly the plaintiffs will say this is still a disguised Muslim ban,” Yale-Loehr said. “The administration will say, ‘No, the executive order says it’s not religious-based.’ It’ll be up to the courts to decide.”
Karen Tumlin, the legal director of the National Immigration Law Center, told reporters on Monday: “The intent remains the same.” Trump’s tweets and statements during and after the campaign, Tumlin said, showed a “clear and well documented record of animus” toward immigrants, particularly Muslims. She called the executive order “an attempt to legalize bigotry and discrimination”.
Tumlin noted that a recent homeland security report said immigrants and travelers from the seven original countries were “unlikely to engage in terrorist activity based on the country of origin”.
Abed Ayoub, legal director of the American-Arab Anti-Discrimination Committee (ADC), said: “The changes are cosmetic. You do have to look at the intent behind both orders that have been signed.”
Finally, there is the large, central question of the president’s power on immigration, a problem that resulted in a 4-4 deadlock last year when the supreme court considered Obama’s order to protect millions of undocumented people.
The Trump administration has argued that the president has power granted by Congress to block people, under a key section of a 1952 immigration law:
Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Challengers have argued that another part of the law, added 13 years later, qualified the president’s power: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
The administration argues that the first clause grants power beyond the limits on issuing visas; the challengers argue the opposite.
What happens to the existing challenges?
On Monday afternoon, the justice department told the federal judge in Seattle, James Robart, that it did not believe that his injunction against the original order covers the new one, which it intends to enforce in 10 days.
The American Civil Liberties Union and other challengers have already indicated that they intend to refile lawsuits based on the new terms of the new order. Some past plaintiffs, for instance valid visa holders, will either have to argue new standing or give up their part in the suits.