Will Trump's Revised Travel Ban Fare Better Than the First?

A woman traveling on a flight from Addis Ababa, Ethiopia, wipes away a tear after greeting a relative in the international arrivals area of Washington Dulles International Airport on February 6. Scott Sullivan writes that the widely reported changes in the new executive order on immigration reflect a rather limited reading of the nature and depth of the legal problems posed by the original. Apparently, the new EO will target the same seven predominantly Muslim countries identified in the original but avoid restricting the travel of lawful permanent residents (i.e., green card holders). Win McNamee/Getty

This article first appeared on the Just Security site.

All signs indicate the White House will issue a new executive order (EO) this week that is intended to replace its January 27 order halting entry into the U.S. by nationals of seven predominantly Muslim nations before it was swiftly stayed by the U.S. Court of Appeals for the 9th Circuit in Washington v. Trump.

Strategically, the White House decision to issue a new EO is probably the simplest and speediest path to advance its agenda and offers the greatest control over the destiny of this initiative. However, the widely expected changes in the new EO simply alter the routes it might travel in the federal courts until it reaches the same ultimate destination of being held unconstitutional.

The widely reported changes in the new EO reflect a rather limited reading of the nature and depth of the legal problems posed by the original version. Apparently, the new EO will target the same seven predominantly Muslim countries identified in the original but avoid restricting the travel of lawful permanent residents or "LPRs" (i.e., green card holders).

According to some reports, all "current holders of U.S. visas" may fall outside the new EO, meaning that anyone with a valid student or work visa would not be subject to a travel ban.

Related: Five good reasons to kill off Trump's immigration ban

Aimed at undermining the 9th Circuit's due-process-based decision, the new EO appears to try to focus the courts' and public's attention on individuals with the least colorable due process rights: foreign citizens with no recognized immigration status.

The White House appears to believe that after sparing those with the strongest claims to due process rights, the broad powers of the political branches to determine immigration and national security policy will carry the day.

Even after revising the EO in these respects, the new order would still possess all the hallmarks of an act that runs afoul of the Establishment Clause of the First Amendment. The clause prohibits government from favoring, or disfavoring, a religion relative to others, and intentional religious discrimination is fatal under the Establishment Clause, regardless of the immigration status of the individuals affected.

As a U.S. District Court in Virginia recently detailed, before and after his election, Donald Trump unambiguously expressed his intent to ban, or at least severely inhibit, the immigration of Muslims. The Trump campaign's siren call for Muslim exclusion, coupled with his desire to facilitate entry of those more likely to "share our values," renders the implication for the Establishment Clause all too obvious.

In a recent New York Times op-ed, University of Chicago Law School professor Eric Posner acknowledged that the Virginia decision reflects "the first time in history that a court has found that a president acted out of bigotry" but that invalidating the original EO based on that bigotry "contradicts the Supreme Court's admonition that courts may not 'look behind' a 'facially legitimate' reason—here, the national security interest in stricter vetting—when the president exercises immigration authority."

Posner worries that a "Trump Exception" in which the judiciary deviates from the broad deference to the executive branch generally given in national security cases could endanger the judiciary's legitimacy and authority should there be an attack on America by radical militants, as the Trump administration has warned about.

Maybe. But I think not. First, it's difficult to characterize judicial scrutiny of these executive orders as a deviation of a settled understanding of the Constitution, especially when that understanding is so dependent on creative judicial interpretation.

The depth of executive power when invoking foreign affairs powers that Posner referenced is largely not a product of constitutional mandate but almost entirely judicially made. Immigration is a prime example.

Not only does the Constitution not grant the federal government "plenary power" over immigration; it arguably gave the federal government no power over the regulation of immigration. While Congress is given power over naturalization (the process of granting citizenship), the power to regulate entry or forcibly deport had to be more creatively constructed in cases like Chae Chan Ping v. United States (aka the Chinese Exclusion case).

Over time, the power of the courts to review claims involving immigration (in cases like Fong Yue Ting v. United States) was limited by a more deferential approach to the political branches than the Supreme Court practices now, as demonstrated by recent decisions like Zivotofsky v. Kerry. (See also Steve Vladeck's "What's Missing From Constitutional Analyses of Donald Trump's Muslim Immigration Ban" and Adam Cox's "Why a Muslim Ban Is Likely to Be Held Unconstitutional: The Myth of Unconstrained Immigration Power.)

Second, even in Missouri v. Holland, one of the most prominent examples of foreign affairs exceptionalism, there's been little reason to believe that the judiciary could reasonably abdicate its authority over the Constitution's "prohibitory words" set out in the Bill of Rights. In other words, if the courts conclude the EO violates the principles of the Establishment Clause, all bets are off for relying on deference to the chief executive.

Posner's argument also demonstrates a problem encasing all of the debate surrounding this EO—specifically, whether special "national security" deference ought to apply whenever the president asserts it, even when such assertions are contradicted by the available facts.

As others have identified, and as my own research on material support prosecution reinforces, there is little reason to believe that further impeding the immigration of individuals from the countries the EO targets is likely to have any national security benefit and is quite possibly harmful to national security.

But setting aside the actual impact—which, at least as regards specific incidents, would be highly difficult to discern—the informational and secrecy advantages available to the executive branch render the other branches, especially the judiciary, vulnerable to manipulation through selective, or even outright false, information dissemination.

The nature of the risks that Posner invokes is mighty speculative, involving the occurrence of an attack by militants and the public blaming the judiciary for particular prior decisions (and not blaming a weak president for ill-conceived executive branch actions, including actions that were designed in an unconstitutional manner).

In contrast, the damage the judiciary would incur by ignoring existing doctrine and turning a blind eye to the abundant, explicit evidence of intentional religious discrimination is more certain.

More generally, it is not obvious that the judiciary could, or should, defer to other branches to bank political capital or legitimacy for expenditure at a future date. As an empirical matter, it is not even clear that's how our world works—and I highly doubt that a prior court ruling will dictate how the courts and political branches will respond if and when a live, unfolding crisis emerges.

In short, while the White House can draft a new EO, it can't rewrite history. The federal courts would be best served by not pretending otherwise, or attempting to predict the prospective public reaction to highly contingent events in the future.

Rather, they should focus on what judges do best: interpret existing law under existing circumstances.

Scott Sullivan is the Harvey A. Peltier Sr. professor of law at the Louisiana State University Law Center.

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