Analysis: Trump's new travel ban will face another tough legal battle
The Trump administration says its revised temporary travel ban targeting six majority Muslim countries addresses the concerns of federal judges and will survive legal scrutiny. But its challenges in court are far from over.
The new executive order, signed by President Trump on Monday, allows legal permanent residents and those with valid visas to enter the United States, eliminates preferences for religious minorities, gives the government more time to implement it to prevent the travel chaos created by the first order and provides a stronger national security justification.
In making those changes, the order acknowledges the "judicial concerns" and "clarifies and refines" the travel ban to comply with federal court rulings.
Even so, immigration advocacy and civil rights groups who successfully halted Trump's first order say none of those changes addresses the underlying problem that they contend makes the ban unlawful: discrimination based on religion.
The ACLU said it may file a lawsuit challenging the order before it goes into effect March 16, the National Immigration Law Center said it may revive existing lawsuits, and legal experts are debating how judges will rule.
The first hurdle for opponents of the ban is whether anyone has "standing" to bring a lawsuit, the legal term for whether someone can prove harm as a result of the order.
Trump's first ban, which went into effect immediately on Jan. 27, led to chaos. Thousands of permanent residents and visa holders were detained at U.S. airports or barred from getting on U.S.-bound planes overseas, which allowed them to sue the Department of Homeland Security.
In Washington state, the attorney general was able to file a lawsuit, in part, because state universities were harmed by the ban. Professors, employees and students of those universities who were from the targeted countries and had visas were stuck abroad or were unable to fly to the U.S. That meant they couldn't contribute to the university or, in the case of students, could not pay tuition, creating a financial harm to the schools.
Thomas Lee, an international law professor at Fordham University School of Law, said Trump is on stronger legal footing now because all current professors and students are allowed to travel freely.
Still, Washington and other states could again argue that the revised ban hurts economically because it prevents state universities from recruiting future students and professors from the banned countries, Lee said. "Those are physical, concrete injuries," he said.
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U.S. District Judge Leonie Brinkema in Alexandria, Va., seemed to open the door to that argument when she issued a statewide preliminary injunction against Trump's first ban last month, arguing that Virginia state schools would lose revenue from students "who are unable to enroll."
Supporters of Trump's ban think that argument is stretching the case. "It's going to be hard to make the argument that our immigration policy exists to provide the University of Washington students who pay tuition," said Ira Mehlman, a spokesman for the Federation for American Immigration Reform, a group that advocates for lower levels of immigration.
If that hurdle is overcome, the question becomes whether Trump's order will be judged illegal religious discrimination.
The administration contends the new order is designed to protect the security of the United States by keeping terrorists from entering the country, and does not constitute a "Muslim ban," even though the targeted countries are all mostly Muslim: Iran, Libya, Somalia, Sudan, Syria, Yemen.
Critics counter that Trump called for a "'total and complete shutdown" of Muslim immigration to the U.S. during his campaign, and his first executive order contained a section that gave immigration preference to religious minorities, including Christians.
The intent behind the order is critical, said Robert Chang, a law professor at the Seattle University School of Law and executive director of the Fred T. Korematsu Center for Law and Equality. "I think it would be inappropriate if a judge just considered this new order as though it appeared in a vacuum."
Judges also must decide whether Trump satisfied their demands for a stronger national security rationale for the temporary ban.
Judges from the 9th U.S. Circuit Court of Appeals repeatedly asked the government to prove that travelers from the banned countries pose a threat to national security. The revised order dedicates several pages to establishing the threat posed by people from those countries.
It highlights each country's historical ties to terrorist groups, notes that immigrants from the banned countries were arrested in the U.S. on terrorism charges and says the FBI is investigating about 300 refugees for ties to terrorism.
"The entry into the United States of foreign nationals who may commit, aid, or support acts of terrorism remains a matter of grave concern," Trump wrote.
Critics say that argument is undercut by a recent Department of Homeland Security assessment that found refugees from the banned countries don't pose a significant threat to national security.
"This is not about national security, it’s about Islamophobia and xenophobia," said Abed Ayoub, legal director of the American-Arab Anti-Discrimination Committee.