On Monday, President Donald Trump signed an executive order temporarily banning nationals from six Muslim-majority countries and halting all refugee resettlement.
The order comes a little over a month after Trump first signed a similar ban, which has since faced multiple legal challenges. Under the new order, nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen will not be able to obtain visas to the United States for 90 days. The Department of Homeland Security (DHS) will determine whether the governments of the targeted countries are providing enough information about their nationals who wish to enter the United States, and reassess whether they should stay banned after the first 90 days.
The order also suspends all refugee resettlement for 120 days, while the DHS reviews “screening procedures to ensure refugees admitted in the future do not pose a security risk to the United States.” The United States will not take in more than 50,000 refugees for the 2017 fiscal year — 60,000 less than planned under the Obama administration. The order will go into effect on March 16 at 12:01 EST.
The new ban does have some differences from its first version, which has now been revoked. Nationals of Iraq will not be targeted under this order, due to “negotiations that have taken place between the Government of Iraq and the U.S. Department of State in the last month,” according to a fact sheet from the White House. Legal permanent residents (green card holders), dual nationals, current visa holders, diplomats, and people who have already been granted asylum or refugee status are not affected under this order. There will be case-by-case exceptions for other nationals of the targeted countries. This eliminates some of the confusion from the first ban. Syrian refugees are also no longer singled out for an indefinite ban under the new order.
Still, a number of questions remain about what’s next. The new order was expected last week, but was delayed after many commentators praised Trump’s first speech to Congress. The Trump administration has argued that the ban is necessary for national security, but if that’s the case, why was he able to delay it to relish in positive press? And why isn’t the new ban taking effect for another 10 days?
Last week, a DHS report found that government activity that is perceived as Islamophobic may fuel radicalization. An earlier DHS report found that citizenship is an “unlikely indicator” of terrorism threats to the United States, and nationals of the countries targeted in Trump’s ban do not pose a threat.
The previous order was suspended after U.S. District Court Judge James Robart granted a nationwide temporary restraining order on the ban, and six days later, the U.S. Court of Appeals for the Ninth Circuit said it would uphold that temporary restraining order. In doing so, the Ninth Circuit ruled that intent can be taken into account in determining whether the order is violating the First Amendment’s establishment clause. As ThinkProgress has previously reported, evidence of intent could include the following:
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.
Last month, Stephen Miller, a senior adviser to the president heavily involved in the crafting and execution of the first order, said that the new order will have only “minor technical differences.” If that’s the case, the question of the intent behind the ban still exists.
The discrepancies between the two versions — along with the delays — also raise the question of what really is necessary for national security.