Bruce Levine's picture

    Anticipating the Revised Executive Order Restricting Entry Into the United States--Updated

    President Trump is expected to issue a revised immigration order today that will supersede the initial order that was enjoined last month by a temporary restraining order issued by a district court in Washington. We will know more about the actual contents of the order and that of course will generate additional discussion.  At this point, it appears that the revised order will eliminate Iraq as one of the seven countries that was specifically referred in the original order, and in fact may be replaced by a a worldwide temporary ban on incoming refugees to the United States--without reference to any nation expressly. It also appears that the revised order will clarify that it is not meant to apply to non-citizen but lawful permanent residents of the United States. [See Update below.] 

    The following are issues which I believe are ripe for consideration now and once the anticipated revisions are made public:

                    1.            The Ninth Circuit (copy of that decision is linked to here), in denying the government request to stay the temporary restraining order issued by the district court, found (a) that the State of Washington had standing to challenge the initial order (Decision at 8-12); and (b) that the president did not have unlimited discretion that would insulate the order from judicial review (Decision at 13-18).

                    2.            Courts outside of the Ninth Circuit are not bound by these determinations.  Moreover, even under the Ninth Circuit’s ruling, the standard of review that a court will apply in a challenge to the order is not entirely clear, and different degrees of deference are afforded the government, depending on applicable constitutional and statutory issues.

                    3.           Given that the revised order involves issues pertaining to national security and immigration, a reviewing court will likely give the government substantial deference..  Such deference would be limited to whether the government could show a rational relationship between border security and the revised executive order. (See Decision at 16 "We are mindful that deference to the political branches is particularly appropriate with respect to national security and foreign affairs, given the relative institutional capacity, informational access, and expertise of the courts" ).  

                    4.           The government is likely to focus on deliberations underlying the order and changes made to the initial order, including and mostly likely in addition to what is alluded to above.   Still, even with the anticipated deference, the government's case could be weakened by the following:

                                    a.          The government's case, that immediate action was necessitated by emergency, is made less credible by the passage of time. It has been more than one month since the initial order was enjoined and the government's stay application was denied on appeal. Simply put, emergencies suggest the need for immediate action.

                                    b.            The Department of Homeland Security has issued two written memoranda disputing the Administration’s contention that there is a rational relationship between the restrictions in the revised order and any national emergency.

                                    c.            The president has, through his own statements and more ominously, as Greg Sargent points out, the executive order's chief architects Steve Bannon and Stephen Miller have made the non-security, demographic-centered intentions abundantly clear.  Sargent notes:

    As I have reported, the evidence is mounting that Bannon and Miller view the ban as part of a much broader, long-term demographic-reshaping project. Miller let slip in a recent interview that the ban isn’t just about national security, but also about protecting U.S. workers from foreign competition. And the Los Angeles Times reports that Bannon and Miller have privately argued that the ban is in keeping with the need to combat immigration by people who “will not assimilate”:

    "Inside the West Wing, the two men have pushed an ominous view of refugee and immigration flows, telling other policymakers that if large numbers of Muslims are allowed to enter the U.S., parts of American cities will begin to replicate marginalized immigrant neighborhoods in France, Germany and Belgium that have been home to plotters of terrorist attacks in recent years, according to a White House aide familiar with the discussions."

    Thus, the ban is of a piece with the long-term goals of protecting American workers from economic competition and preventing European-style immigrant communities (which incubate terror plotters) from developing here.

    As stated, the actual terms of the revised order are expected shortly and will of course allow for a more educated discussion of what the revised executive order will mean. There foregoing is meant to be a guide for assessing the anticipated revisions to be issued today.



    The revised executive order was signed by the president shortly after this piece was initially posted.  It reflects an effort by the government to come up with something that is more likely to be insulated from judicial review.  It does this by including an expanded "fact" section linking the revised executive order to an asserted need to ramp up vetting procedures.  It also does this by modifying the order in an effort to make it more palatable. First, Iraq is eliminated from the now-six countries named in the revised order and who are subject to the 90-day temporary ban in the original order--Somalia, Sudan, Libya, Iran, Syria, and Yemen.  The revised order also recognizes and excludes persons with a lawful right to be in the country, and includes provisions for individual waiver application procedures.  With respect to refugees, the revised order now excludes all refugees for a 120-day period, regardless of their country of origin; the initial order only excluded refugees from Syria.  The revised order contains a number of exclusions for persons with a lawful right to be in the country, and eliminates certain protections for religious minorities that was seen as favoring Christians seeking entry to the country.  


    And, like that, the revised order is issued.  Haven't read it yet, but as predicted, it appears that there are new protections for lawful residents, there's a temporary worldwide temporary ban on incoming refugees, and there are special restrictions placed on people coming from the seven muslim nations listed in the first executive order, less Iraq.

    Thanks for posting this dagblog, but I feel a little bad not waiting to see the order itself.  I still think this is a good way to look at the order and consider the merits. . .but still.. .

    Feel free to modify ;)

    Afraid you'd say that lol.  I will try to tonight after work.  Shouldn't be too much of a hassle. . .famous last words.

    Actually, still not officially signed but it appears to be coming.  If anyone sees the actual order, please link to it if I haven't yet done so.  Thanks!!!

    This is interesting, i.e. has been signed but not in the presence of reporters. . .?



    So, with that update, I'm saying down here, because it's just my opinion, that the revised order is still a muslim ban.  The temporary suspension still applies to six nations, all of which have substantial muslim majorities.  And while lengthier, the facts cited by the government still do not include any real evidence that immigration from these six nations has increased the terrorist threat.  Indeed, the revised order states that 300 persons born outside the US have been arrested for terrorist activities since 2001, yet there is no indication of how many of these individuals originated from the six muslim countries affected.

    I also think that the biggest red herring you hear all the time is this notion that it is not a muslim ban because must muslims live in other nations unaffected by the order.  But this argument is analogous, I think, to the argument that unless you discriminate against all or a substantial number of black people, you cannot discriminate on the basis of race.  

    Still, in the end, the courts are reluctant to second-guess its sister branches generally, and I'm guessing that with the cosmetic changes, notwithstanding its continued discriminatory essence, the revised order will survive a judicial challenge.

    Few early morning observations:

    1. The president called for a Muslim ban from the start.

    2. Mr. Bannon, at a minimum, seems comfortable with white nationalist ideology, and next to the kids he's in the president's ear more than anyone.

    3. The executive order is most intensely focused on six nations with substantial Muslim majorities.  The fact that all the world's Muslims are not affected does not alter the focus of the order--as I see it.

    4. The president's emergency argument was and is fabricated.  The revised order takes effect on March 16th.  The executive order blames the courts for causing delays, but this is also false.  In fact, the government has repeatedly sought and obtained delays in pending cases -- at least in the Washington case but presumably elsewhere as well.

    4. One through four and $2.75 probably get you on the subway.

       a)    The modifications and trumped up factual basis in the revised executive order are largely in response to the Ninth Circuit's decision, and while form over substance, will be used to support the president's argument that the order is linked to the urgent need to beef up existing vetting procedures.

       b)    We know that the government's factual predicate is nonsense, but as the government notes in the revised order, and as the Ninth Circuit also stressed in its decision, the courts are extraordinarily reluctant to second-guess the executive branch, particularly on matters pertaining to immigration and national security.  

       c)  A plus B equals the ultimate fragility of the American system of government.  When push comes to shove, there are unanswered questions about the jurisdictional boundaries of the three branches of government.  In short, even if we knock down the factual predicate asserted by the president (the non-discriminatory pretext), the courts will (must?) be constrained by historical norms with respect to "political" issues--even while the Administration, with Bannon in his ear, seeks to break down these and every other norm that gets in the way.

       d) I think back a few years ago, when here at dag we had harsh but passionate and genuine arguments about federal immigration policy.  Those "discussions" centered on whether and what kind of limits should be applied and also whether unfettered immigration from this hemisphere made it more difficult to accommodate those in need in other places around the world.  Those arguments seem almost quaint now, but the passion underlying those arguments are reason to believe in better times.

    Conservative (albeit never-Trumper conservative) critique of revised order by foreign policy specialist Max Boot.  Boot debunks the factual predicate for the order and emphasizes the defeating effect of preserving the Islamic focus in the revised executive order:

    Thus, if the Trump administration really wanted to combat the terrorism threat effectively it would cease doing or saying anything that is perceived to stigmatize Muslims. A good start would be to stop stressing the “Islamic” nature of the threat, as National Security Adviser H.R. McMaster, among many other experts, has advised. By appearing to be anti-Muslim, the Trump administration is playing right into the hands of groups such as ISIS and al-Qaeda that seek to create the impression that the West is looked in a war with Islam. “I think he is good for us,” a Canadian ISIS fighter told Politico. “We needed someone like him, who is direct.”

    Unfortunately, even the revised immigration order focused on six Muslim nations plays into the hands of the terrorists. Trump would have been well advised to scrap altogether the idea of banning entry from certain Muslim nations and listen to national security experts such as McMaster and his secretary of defense, James Mattis, about what steps would be more effective in the fight against terrorism.


    When you show yourself to be less insightful than Max Boot, you are a lock for first year of eligibility induction into the Simpleton Hall of Fame, which undoubtedly will have an entire wing devoted to Trump and his so-called policy shop.  (Worth noting, one of his early campaign snicker fests turned on the failure to compensate  DC cadre of foreign policy thinkers)

    Unfortunately, in this realm it is not just the president showing less than expected insight.  Lots of folks like this kind of nonsense apparently.

    So it appears that the State of Hawaii is seeking a temporary restraining order to block the implementation of the revised executive order, which is set for March 16th.  Hawaii is is the 9th Circuit so any appeals from the district court will be heard there.

    This is really interesting.  The State of Washington is asking the district court to rule that the current temporary restraining order relating to the initial order applies to the revised order.  From NBC:

    Washington state joins Hawaii to become the second state challenging the travel ban. Oregon and New York will also join with other states expected to lend their voices to the effort in upcoming days, Washington state Attorney General Bob Ferguson said Thursday during a press conference.

    Washington state will ask that a temporary injunction issued last month by a federal judge on Trump's initial executive order apply to the newly revised travel ban. If upheld, this would block federal employees nationwide from enforcing the travel ban.

    "It's my duty, my responsibility to act. We're not going to be bullied by threats and actions by the federal government," Ferguson said.



    With a "normal good faith litigant" (let alone the Federal Government) you'd have a presumption that the withdrawal rendered the prior proceedings moot, but where, as here, the underlying state action seems to have at least the presumption of pretext (thanks, Rudi) you could at least be heard to argue that the new order is merely a cosmetically altered subterfuge, and given this extra special primo dishonest litigant, you might prevail.

    I'm really looking forward to reading the papers from Washington.  They could be arguing that the promulgation of the rule is a violation of the pending TRO, and that the government is in contempt of court!  Probably not but it's fun to play lawyer.

    Nice piece from the Seattle Times, on the state attorney general's request for an order finding that the revised executive order is covered by the original TRO:

    Ferguson said his office will ask U.S. District Judge James Robart to confirm that the Feb. 3 injunction against Trump’s initial travel ban also applies to similar portions of the president’s new order, which restricts travel for people from six Muslim-majority nations.


    He said the burden will be on the federal government to prove Robart’s injunction no longer applies.

    Don't mean the bits and drabs, but this just showed up.  New York is joining in the Washington case to challenge the revised order.  AG Schneiderman calls the revised order "a Muslim ban by another name."  

    Wow.  The District Court of Hawaii has issued a temporary restraining order precluding implementation of the revised executive order.  Two quick notes:

    1. Court finds president's statements and those around him are relevant in determining religious-based animus; and

    2. Court emasculates government's argument that it's not a muslim ban because most of the world's muslims aren't affected by the ban. Updated to note that the court specifically stated that the "illogic" of the government's position is "palable"! 

    More soon.  

    Edited to add copy of decision

    Hawaii court takes note of Stephen Miller's incriminating statements on national television. . .um, not the greatest strategy, but hey he's just a kid, or something.

    This is what you call a judicial smack-down of the Executive:

    The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause argument to a mathematical exercise.

    Decision at 30-31.  

    NYT bascially picked what you did, and makes similar conclusion; on the home page right now:

    ‘The Government’s Premise Is Not True’


    “Palpable” illogic. “Religious animus.” “Remarkable facts.” A judge delivered a sharp rebuke to the White House.

    Yea, it's  dynamite decision, and I'm glad the court addressed the Establishment Clause issue--which was not addressed by the district court in Washington.  

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