Beesquared

The Trump administration is preparing to issue a revised executive order on immigration that is expected to incorporate a series of changes designed to withstand legal challenges.

Though the revision reportedly will continue to restrict travel to the U.S. by people from seven predominantly Muslim countries, it is likely to row back a ban on refugees from Syria and eliminate a preference in immigration for religious minorities. The administration also is expected to clarify that the travel ban does not apply to lawful permanent residents.

The replacement would supersede an executive order issued Jan. 27 that was subsequently stayed by the Ninth Circuit, which ruled that the order’s main provisions are likely unconstitutional. The White House has said it would redraft the order rather than appeal the ruling to the Supreme Court.

To address concerns over due process, the replacement order is expected to take effect at least a week after the president signs it. Though the delay in implementation cannot substitute for a failure to provide protections that due process demands, the lag may allow the government to demonstrate that it took care in enacting the measure after its first try created chaos at airports nationwide.

The American Civil Liberties Union and other groups that have challenged the travel ban in court say they will continue to do so. “As long as there continues to be a ban, we will pursue our lawsuits,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, told Politico. “The discrimination that spurred the ban doesn’t simply disappear by the removal of a few words.”

The replacement order will maintain a cap of 50,000 on the number of refugees that can be admitted in the fiscal year that ends Sept. 30. The ceiling cuts by half the number of refugees who would be authorized to enter the country in the year.

President Trump should thank the appeals court that refused to reinstate his travel ban.

In its ruling on Thursday, the Ninth Circuit mapped out how the administration can narrow the executive order that enshrines the ban in ways that might withstand judicial scrutiny.

Which is what the president said on Friday that his administration is trying to do, regardless of his bluster about the legal system being broken and vows to see opponents in court.

As Judges William Canby, Richard Clifton and Michelle Friedland noted, the executive order suffers from a series of defects that include a failure to uphold procedural protections provide by the due process clause of the Fifth Amendment.

By the terms of the amendment, those protections “apply to all ‘persons’ within the U.S., including aliens,” they wrote, regardless of “whether their presence is lawful, unlawful, temporary or permanent.” [citations omitted] “Those rights also apply to certain aliens attempting to re-enter the U.S. after traveling abroad,” the court added.

Here are some ways the White House can revise the order to comport with the Constitution, based on the ruling.

Acknowledge that lawful permanent residents (LPRs) and non-immigrant visa holders have due process rights. Due process requirements give LPRs and visa holders a right to notice and a hearing that includes an opportunity to present reasons why their travel should not be restricted. As issued, the executive order disregards those rights.

Clarify that lawful permanent residents have the right to re-enter the country after traveling abroad. At oral argument, counsel for the government noted that several days after the order was issued the White House counsel said the travel ban does not apply to LPRs. That didn’t persuade the judges, who wrote that “the White House counsel is not the president, and he is not known to be in the chain of command for any of the executive departments.”

Reinstate the refugee program. As issued, the executive order suspends the country’s refugee program for 120 days, and suspends the entry of all Syrian refugees indefinitely. But U.S. law gives refugees the right to apply for asylum.

Clarify that the executive order does not affect the due process rights of U.S. citizens. That includes, as the court noted, citizens “who have an interest in specific non-citizens’ ability to travel to the U.S.” Examples include a citizen who challenges a decision to deny a visa to her non-citizen spouse, or citizens for whom denial of a visa to a non-resident alien may constitute a violation of their constitutionally protected rights.

Strike the prioritization for religious minorities. The executive order allows the government to make case-by-case exceptions to the travel, admission and refugee provisions for religious minorities in their countries of origin. Three days after the order was issued, the president said that Christians from Syria would be given priority over other refugees seeking to enter the U.S. That violates the Establishment Clause of the First Amendment, the states that sued the government charged. The Ninth Circuit reserved consideration of the claim, but noted that “the states’ claims raise serious allegations and present significant constitutional questions.”

Of course, the White House has options besides revising the executive order. They include an appeal to the Supreme Court, continuing to litigate before the Ninth Circuit, or trying to justify the order in the trial court.

A federal appeals court on Thursday refused to reinstate a ban on immigration to the U.S. from seven predominantly Muslim countries, dealing the Trump administration a setback in its effort to enforce an executive order that has sparked controversy and confusion worldwide.

The unanimous ruling of the 9th U.S. Circuit Court of Appeals upholds an order by District judge James Robart in Seattle, who on February 3 sided with Washington state in a lawsuit against the president and suspended the order nationwide after concluding preliminarily that it injured the state and its residents.

The Ninth Circuit rejected the government’s contention that courts defer completely to presidential exercises of authority over immigration so long as the administration offers a legitimate reason for its action.

“In short, although courts owe considerable deference to the president’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action,” Judges William Canby, Richard Clifton and Michelle Friedland of the Ninth Circuit wrote in a 29-page opinion that returns the case for trial.

The White House is expected to appeal the ruling to the Supreme Court, which is split 4-4, raising the likelihood that the travel ban will remain in abeyance for some time.

As anticipated, arguments before the Ninth Circuit on Tuesday over the Trump travel ban tended toward the procedural, but the hearing also produced exchanges that went to the merits of the measure.

“I’m not sure I’m convincing the court,” August Flentje, special counsel to the Justice Department, told the judges at one point.

The court has said it expects to rule this week. Whatever the outcome, an appeal to the Supreme Court looks likely. But with that court split 4-4, it also seems likely that the Ninth Circuit’s ruling will reverberate for some time.

Much of the wrangling to come at a hearing Tuesday before an appeals court in San Francisco that will decide whether to reinstate a presidential ban on admission to the U.S. by people from seven majority-Muslim countries is expected to focus on procedure.

Washington state, which together with Minnesota accuses the administration of pushing through an unconstitutional order that upends well-settled immigration policy, is asking the 9th Circuit Court of Appeals to leave in place a decision by District judge James Robart in Seattle that temporarily blocks enforcement of the ban nationwide.

The Trump administration, in papers filed on Monday with panel, counters that Robart abused his discretion by “second-guessing a formal national-security judgment made by the president himself pursuant to broad grants of statutory authority.”

If the Ninth Circuit sides with the states, it could send the case back to Robart for a trial, which would leave the travel ban in abeyance. The panel has scheduled oral argument, which will take place by telephone, for 3 p.m. Pacific time on Tuesday. The arguments will be live-streamed via the court’s website.

Should arguments advance to the merits of the matter, here’s a rundown of the main points briefed on appeal by each side.

Standing: The federal government says that states lack authority to sue as representatives of their citizens. The states counter that the executive order harms their public universities by stranding university students and faculty, as well as by cutting into state tax revenue.

Due process: Aliens outside the U.S. “have no right or interest in their admission” that is protected by the Fifth Amendment’s Due Process clause.  The states charge that resident aliens who travel abroad only to find themselves at risk of being deported if they attempt to reenter the country violates due process.

Establishment Clause: The travel ban is not government sponsorship of religion the administration asserts, noting that the order’s prioritizing refugee claims by members of persecuted minority religions “applies to all religious minorities seeking refugee status…” The states charge that the order explicitly distinguishes between members of religious faiths, noting that the president has said that one purpose of the order is to favor Christian refugees at the expense of Muslims.

Equal protection: The government says the executive order blocks refugees from all countries, not just the seven majority-Muslim countries (italics in original), and that the order temporarily suspends entry of aliens from seven countries previously identified by Congress and the executive branch “as raising heightened terrorism-related concerns.” The states counter that the intent of the order is to discriminate against Muslims, adding that while the government cites the 9/11 attacks as a rationale, “it imposes no restrictions on people from the countries whose nationals carries out those attacks.”

Immigration law: Congress has granted the president “broad discretion” to suspend entry of “any class of aliens” into the U.S., the government argues. The states counter that such discretion is subject to review, and that until now, “no president has invoked [the immigration law] to impose a categorical bar on admission based on a generalized (and unsupported) claim that some members of a class might engage in misconduct (italics in original).

A decision whether to reinstate the ban could come relatively quickly. Though either side could ask the Supreme Court to review the ruling, that current 4-4 split between liberals and conservatives on that panel means the appeals court ruling is likely to stand for some time.

Among papers filed with the 9th U.S. Circuit Court of Appeals, which is reviewing the Trump travel ban, is a brief by 97 tech companies, including Microsoft, Apple, Google, Twitter and Facebook. According to the companies, the executive order that enshrined the ban:

[I]nflicts significant harm on American business, innovation, and growth as a result. The order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees. It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.

The order is unlawful, the companies charge, because it discriminates on the basis of nationality and exercises discretion arbitrarily.

In his ruling upholding the president’s order banning admission to the U.S. by people from seven predominantly Muslim countries, District judge Nathaniel Gorton in Boston deferred to the chief executive’s authority over immigration.

But as the arguments in court that led Judge James Robart in Seattle to temporarily suspend the travel ban suggest, the government may struggle to persuade an appeals court that the executive order bears any fair relationship to the goal of protecting Americans “from terrorist attacks by foreign nationals” admitted to the U.S.

Here Robart asks Michelle Bennett, a lawyer for the Department of Justice, how many arrests of foreign nationals from the seven countries there have been since 9/11.

“Your Honor, I don’t have that information,” Bennett answered. “I’m from the civil division if that helps get me off the hook.”

“Let me tell you,” Robart replied. “The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone that says, we have to protect the United States from these individuals coming from these countries, and there’s no support for that.”