Senior policy adviser Stephen Miller said President Trump’s revised travel ban will have “mostly minor technical differences” from the iteration frozen by the courts, and Americans would see “the same basic policy outcome for the country.”
That is not what the Justice Department has promised. And legal analysts say it might not go far enough to allay the judiciary’s concerns.
A senior White House official said Wednesday that Trump will issue a revised executive order on immigration next week, as the administration is working to make sure the implementation goes smoothly. Trump had said previously that the order would come this week. Neither the president nor his top advisers have detailed exactly what the new order will entail. Miller’s comments on Fox News, while vague, seem to suggest the changes might not be substantive. And that could hurt the administration’s bid to lift the court-imposed suspension on the ban, analysts said.
“If you’re trying to moot out litigation, which is to say, ‘Look, this litigation is no longer necessary,’ it is very bad to say our intent here is to engage in the prohibited outcome,” said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama’s Justice Department.
Trump’s original travel ban temporarily barred from entering the United States refugees and citizens of seven Muslim-majority countries: Iraq, Iran, Sudan, Somalia, Syria, Yemen and Libya. When it was first implemented, State Department officials unilaterally revoked tens of thousands of visas, and the order seemed to affect even legal permanent residents, though the White House counsel soon clarified that it should not.
A federal district judge in Washington state suspended the ban Feb. 3, and a three-judge panel with the U.S. Court of Appeals for the 9th Circuit later upheld that freeze. While the Justice Department could have appealed to the full appeals court — or even to the Supreme Court — it asked the 9th Circuit judges last week to hold off because a new executive order was in the works.
“Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns,” Justice Department lawyers wrote.
Officials still plan a new order, but White House press secretary Sean Spicer said Tuesday that they would not rescind the old one. And speaking to Fox News’s Martha MacCallum, Miller seemed to play down how substantial even the revisions would be — which would seem to put him at odds with the Justice Department.
“Well, one of the big differences that you’re going to see in the executive order is that it’s going to be responsive to the judicial ruling, which didn’t exist previously. And so these are mostly minor technical differences,” he said. “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.”
Legal analysts have said previously that there are obvious ways in which the order could be cleaned up to help it pass legal muster — though anything that maintains outright bans might face a tough court battle.
Trump could craft an order that clearly exempts green-card holders — who have the best case to sue over the order — and he could also potentially exempt any current visa holders. But the 9th Circuit panel said that would not address claims “by citizens who have an interest in specific noncitizens’ ability to travel to the United States.”
And no matter what it does, the Trump administration must contend with the president’s own call on the campaign trail for a “total and complete shutdown of Muslims entering the United States” and campaign surrogate Rudolph W. Giuliani’s claim that Trump said “Muslim ban” and asked him to form a commission to determine “the right way to do it legally.”
A federal judge in Virginia referenced those comments in ordering the ban frozen with respect to Virginia residents and institutions, calling it “unrebutted evidence” that Trump’s directive might violate the First Amendment. That is important because if judges found even the new order was designed to discriminate against Muslims — and not to protect national security — they might similarly strike it down.The president does possess broad power to set immigration policy, and even his original executive order might ultimately pass legal muster, analysts have said. So far, courts have just weighed temporary injunctions on the ban, not directly and finally deciding whether Trump exceeded his authority.
“To the extent that the new executive order just makes technical changes, then we don’t see it solving any of the legal problems,” said Lee Gelernt, deputy director of the American Civil Liberties Union’s national Immigrants’ Rights Project, who is involved in a legal challenge to the ban in New York.
At the White House press briefing Wednesday, Spicer said he was confident the administration would ultimately prevail in court, but in the revised order officials had been “very clear about understanding what the court said, and trying to tailor that specifically.”
He also said he was not concerned that Trump’s prior remarks about targeting Muslims would hinder the administration’s case.
“The president was very clear in his executive order that these were countries that we didn’t have the proper vetting for when it came to ensuring the safety of Americans,” Spicer said. “That’s what the executive order said. … It was crafted in a way that was very clear about the countries and was not focused on anything else but the vetting requirements.”
Revisions, analysts said, could ultimately help Trump prevail — particularly if he applied a ban only to the issuance of new visas, and if he issued robust procedures for those whose visas were revoked to challenge that action. His and Giuliani’s comments would be an obstacle, but they would not necessarily block him forever from using his powers on immigration.
“Are you permanently prohibited from ever doing something like this because you at one time said something that was inappropriate?” Fresco said. “The courts will have to decide what they believe here.”
Philip Rucker and John Wagner contributed to this report.