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Trump’s new Muslim ban doesn’t fix the biggest legal problem with the policy

He bragged about how he planned to violate the Constitution.

CREDIT: AP Photo/Molly Riley
CREDIT: AP Photo/Molly Riley

President Donald Trump reportedly signed a new executive order on Monday that significantly waters down the travel ban he enacted just one week after his inauguration.

This new ban significantly rolls back many of the original executive order’s commands that threw airports into chaos. But it does not cure — and may not be capable of curing — the biggest legal flaw in Trump’s original order.

Trump promised to implement a Muslim ban. Yet now he wants the courts to believe that his new order was signed without animus against Islam.

According to a fact sheet and Q&A document the Trump administration distributed to reporters, the new travel ban casts a much shorter shadow than the previous version. The original order targeted immigrants from seven countries, Sudan, Syria, Iran, Iraq, Libya, Somalia, and Yemen. The new order eliminates Iraq from this list, a change the administration credits to Iraq’s promise to “increase cooperation with the U.S. Government on the vetting of its citizens applying for a visa to travel to the United States.”

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Additionally, the order takes several steps that seem likely to ward of some of the chaos that arose immediately after Trump’s first order. The travel ban does not impact “lawful permanent residents of the United States.” Individuals with “valid multiple entry visas” may also travel to and from the United States, although people presently in the US on a single-entry visa will not be able to rely on that visa to get back into the country if they leave.

The ban also doesn’t apply to individuals who have “a valid visa on the effective date of this order,” which is scheduled to be one minute after noon on March 16, 2017.

And the order provides a process that will allow impacted travelers to request a waiver. These requests “will be adjudicated by the Department of State in conjunction with a visa application.”

The new order keeps in place the old order’s plan to reduce the number of refugees admitted to the United States by more than half.

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The waiver process is likely a response to a federal appeals court’s decision in Washington v. Trump that cast serious doubts on the legality of the original order. Trump explained that the Constitution guarantees some travelers impacted by the original order certain rights, “such as notice and a hearing prior to restricting an individual’s ability to travel.” The new waiver process appears to be an effort to comply with this requirement.

So Trump has produced new ban that is both less ambitious and less vulnerable to legal attack than his previous order. That doesn’t mean, however, that it is lawful.

The First Amendment prohibits the government actions “respecting an establishment of religion, or prohibiting the free exercise thereof.” The federal Religious Freedom Restoration Act provides additional protections against religious discrimination in excess of the Constitution’s guarantees. It provides that “government shall not substantially burden a person’s exercise of religion” except in limited circumstances.

Trump’s braggadocious promise to implement a “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on” is powerful evidence that the purpose of his travel ban is to burden Muslims’ exercise of their faith. So is an interview that Trump confidante Rudy Giuliani gave to Fox News in which he describes the real purpose of the original ban:

OK. I’ll tell you the whole history of it. So when [Trump] first announced it he said, “Muslim ban.” He called me up and said, “Put a commission together, show me the right way to do it legally.” . . . And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on.

The White House’s efforts to make the original order seem legal, in other words, were merely a pretext for implementing a Muslim ban — not a serious effort to shy away from religious bigotry.

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The circumstances surrounding the release of the new ban also suggest that the White House’s supposed justifications for the new order are a pretext.

In court, Trump’s lawyers presented the original order as necessary to stave off a potential catastrophe. The order was necessary, they argued, “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” Trump himself echoed this claim.

The administration offers a similar justification for the new order, claiming that it will protect “the nation from foreign terrorist entry.”

But the White House has hardly acted like it is facing a national security emergency. Originally, Trump intended to roll out his new order last Wednesday. According to CNN, those plans were delayed due to the “positive reception” that Trump’s Tuesday evening speech received from many pundits.

This behavior is not consistent with an administration that believes America is facing an urgent national security threat that must be halted right away.

It is, however, consistent with a politician that promised his supporters a Muslim ban, and is now trying to salvage as much of that ban as possible in order to save face.