Updated at 2:30 p.m. ET
President Trump has signed a new executive order that temporarily blocks visas from being issued to citizens of six majority-Muslim countries, revoking and replacing a controversial, now-suspended executive order known as the travel ban.
Like the initial order signed Jan. 27, the new executive order bars arrivals from specific majority-Muslim countries for 90 days and suspends the entire U.S. refugee program for 120 days. It also caps the total number of refugees admitted this fiscal year at 50,000, instead of 110,000.
But there are a series of differences. The ban announced Monday no longer includes Iraq. It explicitly doesn’t apply to lawful permanent residents (green card holders) or existing visa holders. Syrian refugees are not banned indefinitely. Refugees already formally scheduled for travel to the U.S. will be permitted to enter the country.
The new order also omits a section about prioritizing refugees from minority religions in their home countries. That’s the part of the initial order that, as NPR’s Domenico Montanaro has reported, “indicates prioritizing Christians,” and was one reason the order was challenged as a form of “Muslim ban.”
The order signed Monday will have a delayed implementation — going into effect at 12:01 a.m. ET on March 16 — to avoid the chaotic situation created by the initial order, with people in transit when their visas were nullified.
The new order blocks people traveling from Sudan, Syria, Iran, Libya, Somalia and Yemen. Iraq is no longer included because, the administration says, it has pledged to “increase cooperation with the U.S.” and share more information about its citizens.
A senior administration official told reporters about another reason: Iraq has agreed to the “timely repatriation” of Iraqi citizens in the U.S. who are slated for deportation, the official said. As of last summer, Iraq was one of 23 countries considered “recalcitrant” for refusing to cooperate with the U.S. in deporting their citizens.
“Recalcitrant countries” were raised as an issue in a separate executive order, but weren’t mentioned in either of the orders on visas and travel. Some “recalcitrant” countries, including Iran and Libya, are affected by the visa ban; most are not.
Administration officials left open the possibility that other countries could be added to future visa-issuance bans, or that countries currently on the list could be removed.
The White House has consistently said that the travel ban was not and is not a “Muslim ban,” but a policy designed to reduce the threat of a terrorist attack.
Critics of the travel ban have challenged the selection of the seven (now six) countries, questioning whether it can be justified on any fact-based national security grounds. The seven countries were on an Obama administration list of “countries of concern” for the Visa Waiver Program, which had nothing to do with blocking travel entirely.
As NPR’s Greg Myre has reported, the list “doesn’t include any countries from which radicalized Muslims have actually killed Americans in the U.S. since Sept. 11, 2001” — like Saudi Arabia, Egypt, Pakistan or Russia.
The latest executive order apparently attempts to address this with a paragraph about “conditions” in each targeted country, and the terrorist groups with a presence or connection there.
“Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones,” the new order states, alleging that the countries pose “heightened risks” to U.S. security.
The suspension of the U.S. refugee program has been similarly criticized. Since the Refugee Act of 1980, there have been no deadly terror attacks by refugees. Nine people were injured in an attack by a Somali refugee last year, which is still under investigation.
In Monday’s executive order, the administration offered three examples of people who entered the U.S. as refugees and were convicted of terrorism-related offenses.
Two came from Iraq; they are the men who lived in Bowling Green, Ky., and were charged with supporting a terrorist group.
Another came from Somalia as a child refugee and was arrested for plotting an attack on a holiday event in Portland, Ore. He was a naturalized U.S. citizen by the time of his arrest.
Speaking on Monday, Attorney General Jeff Sessions also said that “people seeking to support or commit terrorist attacks here will try to enter through our refugee program.” He said hundreds of people who arrived as refugees are under FBI investigation for possible terrorism-related crimes, although the Department of Justice has refused to provide any details about these reported investigations.
Rounds of litigation
The White House insists the first order was legal and appropriate, even though it’s being replaced by the new order.
That original order prompted chaos at airports and inspired protests — and dozens of lawsuits.
The suits were filed by “doctors, professors, students, people fleeing violence and Iraqis who have worked for the U.S. military,” as NPR’s Joel Rose and journalist Parker Yesko reported last month. They continued:
“Some [of the plaintiffs] were detained in American airports for hours over the weekend; others were barred overseas from boarding planes bound for the U.S. Two Syrian brothers with visas to enter the country say they were turned around at Philadelphia International Airport and sent back to Damascus.
“Human rights organizations and attorneys general in five states jumped aboard some of the suits, and their lists of legal grievances were long. They alleged violations of the First, Fifth and 14th Amendments, which guarantee religious equality, due process and equal protection under the law, as well as denials of asylum and discriminatory visa processing.”
One of the suits, brought by the state of Washington and joined by the state of Minnesota, prompted a federal judge to issue a nationwide temporary stay of Trump’s executive order on Feb. 3.
The Department of Justice challenged the stay in a U.S. appeals court, but a panel of three judges upheld the suspension. As a result, the initial executive order has not been in effect for more than a month.
The new order, which is twice as long as the original, is meant to “address previous concerns” from the courts, according to Homeland Security Secretary John Kelly. But it’s not likely to be the end of legal challenges.
“I think everyone — and I assume the government as well — expects that there will be a new round of litigation,” Omar Jadwat, director of the Immigrants’ Rights Project at the ACLU, told NPR before the new order was released.
In a statement Monday, he said the new order is “a scaled-back version that shares the same fatal flaws.”
A “dual track” strategy?
Meanwhile, the signing of a new executive order doesn’t necessarily spell the end of lawsuits against the old order.
White House press secretary Sean Spicer has repeatedly said the administration plans follow a “dual track” strategy of continuing to defend the old order from legal challenges even as a new order replaces it.
However, the executive order signed Monday formally revokes the Jan. 27 order as of March 16, and a senior official at the Department of Justice told reporters on Monday that the DOJ believes a majority of the pending cases are now moot.
That may well spell the end for many of those suits, especially those brought on more narrow grounds. But whether or not a lawsuit is still valid will be decided case by case.
Judges might not necessarily be persuaded by the Justice Department’s arguments that a case is no longer relevant, says Catherine Kim, a law professor at the University of North Carolina Law School. She joined other law professors in signing an amicus brief against Trump’s initial order, and spoke to NPR before the new order was announced.
Even for cases where the original complaint is no longer an issue under the new order — like, for instance, a case involving a lawful permanent resident — “the courts may be worried that as soon as the case is dismissed the administration would just go back and reissue the [original] executive order,” Kim says.
Other, broader challenges to the original order could apply equally to the new order, she says — such as the allegation that the order was “done in bad faith,” she says.
“I don’t think that there is anything that the new executive order could do to address concerns raised by the courts [that] this was really motivated by animus, not by national security concerns,” she says.
The Trump administration maintains that it will eventually triumph in the legal battle over the original executive action, based on the president’s broad authority on immigration issues. Some legal scholars, including Alan Dershowitz, believe the administration could win at least a partial victory on those grounds.
“I don’t think the ban is unconstitutional as it affects a family in Yemen who has had no contact with the United States and simply applies for a tourist visa to come see the Statue of Liberty,” he told NPR in early February. But, Dershowitz said, other elements of the ban — especially the initial interpretation that it applied to green card holders — are harder to defend.
The issue could eventually end up before the U.S. Supreme Court.