The Trump administration has decided not to continue litigating over its executive order on travel. Instead it will issue a new order that addresses the main concerns expressed by the Ninth Circuit. What changes will this entail?
Jacob Sullum at Reason identifies the three changes he expects to see. First, he says, the new order will explicitly exclude lawful permanent residents from the travel ban. The key word here is “explicitly.” Sullum explains:
The Supreme Court has said green-card holders have a right to due process if the government tries to stop them from re-entering the country after traveling abroad. The Trump administration concedes that point but says the travel ban should not be interpreted as covering lawful permanent residents (LPRs), even though officials at the White House and the Department of Homeland Security initially said it did.
Expect the new order to end any ambiguity on this score.
Second, Sullum thinks “the new order probably will exclude [from its scope] people who do not have green cards but are already legally living in the United States.” The Ninth Circuit took the view that people from the seven banned countries who are legally working or studying in the U.S. on non-immigrant visas have due process rights when the government decides to revoke their visas.
The Trump administration disagrees and is, in my view, correct. However, it will likely back off on this question and focus on aliens who have never entered this country and have no connection to it. Even the Ninth Circuit (assuming that this where the challenge to the new order ends up on appeal) would be hard-pressed to find that such individuals have constitutional rights, though anything is possible with that court.
Third, Sullum believes the new order will clarify that it has no impact on asylum applications. The Ninth Circuit noted that refugees have a statutory right to seek asylum once they have arrived in the United States.
This means they have potential due process claims if they are summarily ejected from the country. The new order will likely make clear that it does not violate this principle.
Sullum doubts that the new order will alleviate another of the Ninth Circuit’s concerns — that the travel ban encounters due process difficulties because it applies to foreign nationals “who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” The Trump administration isn’t likely to back down on this; to do so would truly undermine the travel ban.
This issue, then, is likely headed to the Supreme Court. In addition, I expect that the Ninth Circuit would find additional defects in the order that it didn’t deem necessary to rule on the first time around.
For example, the Ninth Circuit panel took seriously the argument that the original order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. As evidence of such intent it cited, ridiculously, statements made by Donald Trump when he was running for president. However, it “reserve[d] consideration of these claims.”
If the Ninth Circuit rules on the new order, it might well find a violation of the Establishment and/or the Equal Protection.
So the new order is unlikely to satisfy the Ninth Circuit. But if the matter goes to the Supreme Court, the order will be on an even firmer footing than the last one was. In addition, some of the key Justices may be favorably influenced by the fact that the Trump administration took most of the Ninth Circuit’s concerns seriously and, indeed addressed them, before forcing the Supreme Court to become involved.