Word on the street is that the Trump Administration is prepared to issue a new executive order on immigration. While I have maintained that the law favors President Trump on this issue and I have been critical of the decision by the Ninth Circuit, I have also maintained that the original executive order was poorly written, poorly executed, and poorly defended. A second executive order could reset the litigation and cut away a key (and in my view questionable) component of the Ninth Circuit opinion in expressly exempting green card holders. The new order reportedly does precisely what many of us have suggested while keeping the majority of the prior order. By retaining the same countries and imposing the same conditions, the new order would protect the Administration politically from allegations that the President has backtracked. It would also leave the core basis for challenges on the merits of such travel limitations. I will be speaking on Capitol Hill on Tuesday about the President’s executive order authority at the US Capitol Visitors Center at noon.
According to unnamed Administration officials, the same seven countries (Iran, Iraq, Syria, Somalia, Yemen, Sudan and Libya) will be listed in his original executive order. However, green-card holders and dual citizens of the U.S. and any of those countries are exempt. Moreover, the order will remove the singling out of Syrian refugees for a ban on entry. Critically, as should have been the case in the first executive order, the new order would expressly exempt travelers who already have a visa to travel to the U.S., even if they haven’t used it yet.
The new order would also presumably retain the 50,000-per-year refugee cap, which reduced such entries by half and was not suspended by the earlier court orders. Given the 35,000 entries thus far this year, that would leave only 15,000 spots left.
The Ninth Circuit ruling was light on legal analysis concerning the President’s recognized authority under statutory and constitutional law. One of the key components was standing and the Court used green card holders as a class with continuing harm from the order despite their exemption a few days later. White House counsel Donald McGahn issued an order that the travel restrictions would no longer be interpreted to apply to legal permanent residents. However, the Ninth Circuit ruled that “The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order.” The inclusion of the green card holders as injured parties was critical for the Court since aliens outside of the country are not protected by the Constitution to the same extent as citizens or aliens within the country.
The executive redux is a smart move that allows the Justice Department to fight on its chosen ground. It will hopefully improve the drafting, but there will also be a need improve the defense of the order in court.