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.