- By Ruby MellenRuby Mellen is a fellow at Foreign Policy with a background in TV, print, and digital journalism. Before coming to FP, she covered the 2016 election as a news associate at CNN in Washington, D.C., working on State of the Union with Jake Tapper. Prior to that, she was a politics fellow at the Huffington Post. She was born in New York and is a dual citizen of Belgium and the United States.
With the Trump administration reeling after a defeat in the Ninth Circuit Court of Appeals, it is reportedly mulling redrafting the controversial travel ban, whose haphazard implementation sowed chaos across airports and inside the U.S. government, as well as for thousands of U.S. visa holders around the world.
But rewriting the order to make it viable against a court challenge will be harder than simply tweaking the language and coordinating with White House counsel. Experts say what’s needed is a thorough overhaul, one that would only serve to underscore how untenable the initial order was.
It’s not clear whether the administration will try to defend the first order or start from scratch. President Donald Trump tweeted on Thursday that he would appeal the ruling, then late Friday the White House said it would not immediately appeal the Ninth Circuit court’s decision. Later that evening, the White House reversed its position and said it would appeal.
Meanwhile, Trump at a press conference earlier Friday seemed torn between defending the initial order and presenting a new one next week. He said any new order would require “very little” change, but many legal experts disagree.
“It would require a complete overhaul in their approach,” Rebecca Hamilton, a law professor at American University who focuses on national security, told Foreign Policy. She wrote last week that the seven Muslim-majority nations the initial travel ban targets is hard to justify on counterterrorism grounds.
“If an administration really was concerned about preventing future terrorist attacks, this is not the executive order they would have come up with,” Hamilton said.
To prevail against the kinds of legal arguments the 9th circuit flagged in its ruling, the Trump administration would likely have to refine entirely the scope of the travel ban, legal experts say. Options include either adding non-Muslim nations — to sidestep arguments that the ban has a religious basis — or adding Muslim nations actually responsible for carrying out serious acts of terror in the United States. Counterterror experts and national security lawyers questioned the exclusion from the original order of countries like Egypt and Saudi Arabia, home to most of the hijackers in the Sept. 11, 2001 attacks.
“The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” the Ninth Circuit Court wrote this week.
“I think the court really was skeptical of the correlation in this order [with] the protection of national security,” said Stephen Legomsky, a law professor at Washington University who specializes in immigration law.
Another approach would be to add non-Muslim nations to the list, to parry charges that the ban is based on religion. The Ninth Circuit declined to rule on that issue, but noted evidence presented by Washington and Minnesota that Trump had sought a “Muslim ban.”
“The States’ claims raise serious allegations and present significant constitutional questions,” the court found.
The administration of George W. Bush sought to avoid charges of religious discrimination with its travel restrictions in 2002, creating the National Security Entry-Exit Registration. That required citizens from 25 countries — 24 Muslim-majority countries, plus North Korea — to register with the administration and to undergo special vetting when entering or leaving the country. The program still drew legal challenges for the composition of the list, and proved wholly ineffective, producing zero terrorism-related convictions in its nine years of existence.
One likely tweak to the order would be to scale back its reach, excluding legal permanent residents and individuals who hold U.S. student or work visas.
“Exempting current visa holders and green card holders from the order would improve Trump’s chances with the courts,” Paul Rothstein, a Georgetown law professor and expert in constitutional law, told FP. The Ninth Circuit highlighted its concerns with the broad reach of the initial executive order, which it said violated due process rights of legal residents and even some aliens.
“Those people are the ones who have the strongest claim that they have not been afforded due process,” Rothstein said.
The president by law has broad authority over immigration actions, and traditionally enjoys wide deference on matters of national security. But legal experts say that doesn’t mean the Supreme Court will necessarily reverse the circuit court’s ruling, given the apparent weaknesses of the initial order.
“The president has a lot of scope, but he can’t violate the constitution,” Hamilton said.
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