Law360, New York (March 9, 2017, 4: 16 PM EST) — On March 6, 2017, President Donald Trump signed a new executive order replacing the original order signed Jan. 27, 2017, which temporarily banned travel to the United States by foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. A U.S. district court in Washington issued a nationwide temporary restraining order that halted enforcement of the travel ban. The Ninth Circuit unanimously upheld the temporary restraining order. Rather than challenge the Ninth Circuit’s decision, the government chose to issue a new executive order.
Effective March 16, Trump’s new executive order – “Protecting the Nation from Foreign Terrorist Entry into the United States” – imposes a 90-day travel ban for nationals of Yemen, Somalia, Libya, Sudan, Iran and Syria. Iraq is notably absent from the listed countries. Government officials have confirmed that Iraq was removed from the list because the Iraqi government has shown a commitment to partnering with the U.S. to combat terrorism and a willingness to share information about its citizens. The new executive order also provides for a 120-day suspension of the U.S. Refugee Admissions Program. This new executive order is narrower in scope and attempts to address constitutional concerns expressed by the public and the Ninth Circuit.
Standing and Waivers to the Travel Ban
The public’s attention has focused on constitutional concerns with the travel ban; however, before the Ninth Circuit discussed due process and discrimination concerns, the court had to determine whether the states could file suit. The states argued that the travel ban caused substantial harm to their public universities and prevented certain students, faculty and scholars from traveling, thus hindering the universities’ ability to accomplish academic objectives. The Ninth Circuit found that states have standing to sue the government under the “third-party standing doctrine.”
The government argued that a waiver existed for certain individuals impacted by the travel ban and could potentially resolve unnecessary harm. Noting the ambiguity surrounding the waiver under the initial executive order, the court did not agree that the waiver was a viable solution. The new order provides clarification about the waiver process in direct response to the court’s holding. The new order also clarifies that U.S. Consular officers and U.S. Customs and Border Patrol officers may use discretion to grant a visa to individuals who are otherwise subject to the travel ban if the applicant shows that undue hardship would arise if entry is denied, that entry would not pose a threat to national security and that entry would be in the national interest. “National interest” and “undue hardship” continue to remain undefined. The new order also specifically identifies students as potential candidates for the waiver.
The added clarification is likely intended to help prevent states from asserting standing in the future based on harm to universities and the academic community. If students are able to obtain waivers to circumvent the travel ban, then no harm would be incurred.
Scope of Executive Order
The Ninth Circuit also discussed due process concerns associated with the original executive order. Equating deprivation of one’s ability to travel with deprivation of liberty, the states argued that certain lawful permanent residents and nonimmigrant visa holders were deprived of constitutional due process rights to notice and an opportunity to respond to the travel ban. In turn, the government argued that the temporary restraining order was improperly broad. The government stated that the temporary restraining order improperly extended to foreign nationals with no connection to the U.S. who cannot assert liberty interests associated with travel and should not have applied nationwide. The government then proposed limiting the scope of the temporary restraining order to lawful permanent residents and previously admitted foreign nationals.
Recognizing the temporary restraining order may cover foreign nationals without due process rights, the court declined to limit the scope of the temporary restraining order. The court also expressed concern that the government’s proposed limitation omitted certain individuals who have due process rights, such as those who are unlawfully present in the U.S.
The new order attempts to address the court’s due process concerns and expressly excludes application of the travel ban to lawful permanent residents and current nonimmigrant visa holders, among others. The new order also provides advanced notice to all parties because it will not become effective until March 16, 2017.In a prepared statement, U.S. Secretary of Homeland Security John Kelly affirmed “the executive order signed today is prospective in nature – applying only to foreign nationals outside of the United States who do not have a valid visa. It is important to note that nothing in this executive order affects current lawful permanent residents or persons with current authorization to enter our country.”
Finally, the new order now includes a severability clause to allow revocation of certain provisions without impacting the order in its entirety. The new order does not address the court’s assertion that foreign nationals who are unlawfully present in the United States have due process rights that may have been infringed by the initial travel ban.
The Ninth Circuit recognized a concern that the initial travel ban unconstitutionally discriminated against Muslims yet declined to decide this issue. Nevertheless, the new executive order clarifies that the initial travel ban was not implemented to discriminate against any religion. It also explains that initial instructions to prioritize claims from religious minorities applied on a worldwide basis and could theoretically include claims from individuals where Islam is the minority religion. The new order, unlike the prior one, no longer states that preference should be provided to religious minorities and no longer references Syrian refugees.
Weighing the government’s interest in combating terrorism against the harm caused by the travel ban, the Ninth Circuit avoided stating that a travel ban would never be justified for national security reasons. The court did admonish the government for failing to produce corroborating evidence establishing national interest and the urgent need for a travel ban. The government’s attorneys were either unwilling to share classified information, unaware that sharing classified information was possible while still preserving confidentiality, or not privy to any classified information that may have motivated Trump to implement the ban. The court determined that the government failed to show how the ban justified the harm caused.
Perhaps to address this concern, the new executive order now includes publicly available information from various sources to justify the security interests behind the travel ban. The new order claims that more than 300 refugees, without reference to which countries they are from, are currently subject to counterterrorism investigations. The new order cites examples, including one refugee who entered the United States and was arrested for plotting to detonate a bomb during a Christmas celebration. Trump also reiterated that Congress designated the listed countries as state sponsors of terrorism before he was elected, when restrictions to the Visa Waiver Program were implemented in 2015. The Ninth Circuit had previously found that point to be an improper extrapolation saying that requiring interviews be given to foreign nationals from certain countries before a visa could be issued to them is not the same as temporarily banning them from the United States.
Despite the changes in the new executive order, the travel ban has been met with both criticism and praise. Critics fiercely oppose the travel ban as unconstitutional and discriminatory.
Proponents adamantly support the ban as necessary to protect national security. The government clearly drafted the new order to address structural defects and constitutional concerns outlined in the Ninth Circuit’s decision while still advancing the travel ban and attempting to protect against future legal challenges. Whether changes to the new order will be sufficient to withstand legal challenges remains to be seen. Likewise, whether either order strengthens national security or weakens it, as some allege, remains to be seen.
-By Kari Konikowski Blackman, Foster LLP
Kari Konikowski Blackman is a senior attorney at Foster in Houston.
Avalyn Castillo Langemeier, a partner at Foster in Houston, provided assistance with this article.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.