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Trump readies revised travel ban

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.

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New York and 33 other cities oppose Trump travel ban

On Oct. 3, 1965, President Lyndon Johnson and several hundred guests, including Vice President Hubert Humphrey and Senator Robert Kennedy, traveled by boat to Liberty Island, where the president signed into law an act that prohibits discrimination in the issuance of visas.

“Our beautiful America was built by a nation of strangers,” Johnson said in remarks at the bill signing. “From a hundred different places or more they have poured forth into an empty land, joining and blending in one mighty and irresistible tide.”

We are reminded of that day in a 24-page brief filed Thursday with the U.S. District Court in Brooklyn by New York and 33 other cities that together oppose an executive order by President Trump that would block entry to the U.S. by people from seven predominantly Muslim countries.

The court, which will hear arguments in the case at the end of this month, was the first to block the administration from enforcing the travel ban. The Ninth Circuit later blocked its enforcement nationwide.

The cities charge that the ban would damage their social fabric, disregard the constitutional requirement of due process, undermine attempts to combat hate crimes, and upend security and counterterrorism.

New York City, they note, is home to an estimated 27,000 people born in the seven countries covered by the travel ban and another 46,000 people whose ancestry traces to those nations. The city also is home to one of the country’s largest Muslim populations, including nearly 1,000 Muslim police officers, they add.

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Virginia judge blocks Trump travel ban

Editor’s note: I’m a bit late on this ruling, but I wanted to write it up for the record. On Thursday, the president told reporters he plans to issue a new executive order on immigration next week that the government says will be designed to eliminate concerns that led two federal courts to block enforcement nationwide of a ban on admission to the U.S. of people from seven predominantly Muslim countries.

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The Trump administration’s ban on entry to the U.S. for people from seven predominantly Muslim countries likely constitutes state sponsorship of religion in violation of the Constitution, a federal court in Virginia has ruled in a further setback to the White House’s effort to tighten the border in the name of national security.

Though the government contended that security concerns motivated a Jan. 27 executive order that enshrines the ban, public comments before and after the election by the president and his allies suggest that the order reflects policy designed to disfavor Muslims in contravention of the First Amendment’s Establishment Clause, Judge Leonie Brinkema said in a 22-page opinion issued Monday that prevents the administration from enforcing the ban in northern Virginia.

The ruling supplements a ruling on Feb. 3 by a federal judge in Seattle that blocked enforcement of the order nationwide.

In reaching her ruling, Brinkema surveyed at least six years of statements by Donald Trump, who complained to Fox News in 2011 of a “Muslim problem in the world,” and later, on the morning the executive order was signed, told an interviewer that his administration would prioritize admissions for “persecuted Christians” from Syria, as provided in the order.

Two days later, the court noted, former Mayor of New York City Rudolph Giuliani told Fox News he assembled a commission at the request of then-candidate Trump that reframed a Muslim ban as scrutiny of immigrants from the seven countries named in the order.

The statements suggest that the executive order aimed to exclude entry to the U.S. by Muslims, said Brinkema. And that, together with the absence of evidence that would specify the national security concerns that allegedly prompted the order, belie the government’s claim that the travel ban has a secular purpose that would allow it to withstand scrutiny under the Establishment Clause, according to Brinkema.

“Absent the direct evidence of animus [toward Muslims] presented by the Commonwealth [of Virginia], singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however with that direct evidence, a different picture emerges,” Brinkema wrote. “In Giuliani’s own account, the origin of this [order] was a statement by the president that he wanted a legal way to impose a ban on Muslims entering the United States.”

“The Court’s conclusion rests on the highly particular ‘sequence of events’ leading to this specific [order] and the dearth of evidence indicating a national security purpose,” she added.

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Trump should thank the Ninth Circuit

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.

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Trump’s war on immigrants is intensifying

The Trump administration’s war on immigrants is intensifying.

We learned on Friday that federal agents carried out raids this week in as many as 10 states amid fears that the administration may be trying to round up and remove law-abiding people. In Austin, agents appeared to detain people in a shopping center parking lot. And in both Texas and  and North Carolina, the government allegedly set up checkpoints on roadways.

Agents carried out the latest raids in the daytime, which an unnamed government aide told The Washington Post was “meant to send a message to the community that the Trump deportation force is in effect.”

That differs from the policy of the Obama administration, which carried out raids at night and prioritized people who committed crimes.

The raids also serve as a reminder that besides the ban on immigration from seven predominantly Muslim countries that the president signed on Jan. 27, he signed two executive orders two days earlier that call for, among other things, an intensification of roundups and removal of millions of undocumented immigrants from the U.S. interior, the hiring of 10,000 additional immigration officers, and construction of a wall along the southern border that we learned this week may cost nearly $22 billion.

“Teachers in my district have contacted me — certain students didn’t come to school today because they’re afraid,” Greg Casar, a city council member in Austin, told the Post. “I talked to a constituent, a single mother, who had her door knocked on this morning by [federal agents].”

Responding to criticism of the raids, the Department of Homeland Security said Friday that three-quarters of the 160 detained in Los Angeles this week have felony convictions.

But officials haven’t said how many people were detained nationwide. So we don’t know. Which means that this weekend, there may be people in detention who have done nothing worse than leave the house without identification.

And that could be you or me.

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Ninth Circuit refuses to reinstate Trump travel ban

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.

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Appeals court presses lawyers on Trump travel ban

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.

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Restore travel ban, Trump urges appeals court; lower court ruling entitled to deference, states say

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.

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Trump travel ban would harm competitiveness of US companies, tech firms say

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.

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The Trump travel ban lacks a rational basis

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.”

“Your Honor, I think the point is that because this is a question of foreign affairs, because this is an area where Congress has delegated authority to the President to make these determinations, it’s the President that gets to make the determinations,” Bennett answered. “And the court doesn’t have authority to look behind those determinations.”

Even if the White House is entitled to deference, the 9th Circuit U.S. Court of Appeals may ask, as Robart did, what tie, if any, the executive order has to the goal of protecting Americans.