The Muslim ban is facing a series of legal challenges, just a little over two weeks since President Donald Trump first signed it. Trump has been confident that he will win Washington v. Trump, one of the most prominent cases thus far, but last week he also said that he may simply rewrite the ban. Still, it’s not guaranteed that even a revised version of the ban will survive judicial scrutiny.
“We will win that battle. The unfortunate part is that it takes time statutorily, but we will win that battle,” Trump told reporters on the way to Florida on Friday. “We also have a lot of other options, including just filing a brand new order.”
When asked what changes there might be in a new executive order, he simply said there would be “new security measures” and “very, very strong vetting.”
It’s not clear what exactly the new order would look like. It could add new countries to the list — something that Trump’s aides have already floated as a possibility. Adding non-Muslim-majority countries in particular could help get them away from arguments that it is, in fact, a Muslim ban.
In choosing not to overturn the temporary restraining order in Washington v. Trump last week, the Ninth Circuit ruled that legal precedent shows evidence behind the face of the law — like intent — can be taken into account in deciding whether the order is violating the First Amendment’s establishment clause.
Trump openly campaigned on the promise of a “total and complete shutdown of Muslims entering the United States.” The executive order includes a specific caveat for non-Muslim refugees, and the day that it was signed, Trump went on Christian Broadcasting Network and said Christian refugees in particular would be given priority. The next day, Rudy Giuliani, one of his advisers, went on Fox News and said that the order came about after Trump asked him about the best way to do a Muslim ban “legally.” The son of recently resigned National Security Advisor Michael Flynn similarly called it a Muslim ban on Twitter. All of these data points could be considered in a final ruling on the current ban — or in a decision on the possible revised ban.
Washington Attorney General Bob Ferguson has said that he will seek written documents and emails by Trump administration officials that could prove that the intent of the order was to discriminate against Muslims.
Margaret Hu, Associate Professor of Law at Washington and Lee University School of Law, said that it would be appropriate for the federal courts to consider discriminatory intent in evaluating the constitutionality of the ban. “If it has a religious discriminatory intent, that goes to whether there’s an establishment clause violation,” she said. “If that’s what’s happening here, that’s a violation.”
A revised order could also simply limit the ban to future arrivals from the seven countries targeted (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen). As it currently stands, the executive order limits the entry of legal visa-holders and refugees who have already been vetted.
It also took the White House five days to confirm that the order will no longer apply to legal permanent residents (green card holders), who courts have generally agreed have due process rights. The confusion over legal permanent residents was specifically cited in the Ninth Circuit’s refusal to overturn the temporary restraining order last week. “At this point… we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents,” the judges’ opinion read.
In general, limiting the travel of people who are already legal residents or visa-holders has led to a lot of fear and confusion. Choosing to only apply it to future refugees or visitors from the targeted countries could eliminate some of that.
“I think there will be a huge legal push-back on the presumably looming executive order,” said Alén Takhsh, an Iranian American attorney based in Chicago. “The constitutional arguments against the executive order are likely to once again pass judicial muster, and on top of that, you tack on the argument that the law does not pass the ‘rational basis’ test. Yes, the President does have wide discretion in protecting us, but what he does has to be rationally based. You can’t just say I’m going to ban people from Tajikistan, [for example], you have to point to how nationals of Tajikistan traveling to the U.S. have harmed Americans. And, obviously, facts are important in that calculus.”
Since January 27, when Trump first signed the executive order, over 20 lawsuits have been filed. In the case of Washington v. Trump, Judge James Robart granted the states of Washington and Minnesota a nationwide temporary restraining order on Trump’s ban, and last Thursday, the United States Court of Appeals for the Ninth Circuit ruled that it would leave that temporary restraining order in place. Robart still needs to make a final ruling on the case, but it’s not looking very good for Trump. On Monday, a federal judge also granted a preliminary injunction halting the enforcement of the ban in Virginia, ruling that the ban is rooted in a religious bias that violates the First Amendment.
If a new order isn’t issued, Washington v. Trump could be reheard by a larger panel of Ninth Circuit judges or it could go all the way to the Supreme Court — and that means it will be a while before a final ruling is actually issued.
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
Hu pointed to the case of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) order under President Obama as an example of how long it might actually take. Obama signed the DAPA executive order in November 2014, but it took until June 2016 for a final 4–4 split ruling from the Supreme Court. “It could stretch out for a long time,” she said. “Who knows?”
Leaving the families impacted by Trump’s ban in limbo for another 1.5 years could be utter chaos.