What You Need to Know About Trump's New Travel Ban

It's less harsh than the old ban on refugees and travelers from several Muslim-majority countries, but will it stand up in court?

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Mar 6 2017, 9:22pm

Photo by Olivier Douliery/Pool via Bloomberg

On Monday, President Donald Trump signed a new executive order that revised his infamous "travel ban," which temporarily halted entry into the United States of refugees and the residents of several Muslim-majority countries. The new order is less restrictive and promises to be more smoothly implemented (it doesn't come into effect immediately), a clear attempt to withstand legal review after the old order was (mostly) suspended by a judge in February. In contrast with the January original, this executive action was not accompanied by pomp and circumstance; Trump signed the new order behind closed doors, an oddly mellow event following a weekend in which he accused his predecessor, Barack Obama, of tapping his phones

It's impossible to separate the new policy from the especially rough stretch for the 45th president that preceded it: Trump's alleged Russia ties have continued to dominate the news, and he has faced growing pushback on a variety of issues from within his own party. Which is to say the new order represents an opportunity for Trump to reset the national conversation, something he did to great effect during his insurgent presidential campaign. The key question is whether this new ban, which unlike its predecessor does not include citizens of Iraq and ditches the original's carve-out for religious minorities (a.k.a. Christians), will stand up to legal scrutiny.

The president's new policy does still include a blanket ban on new refugees for 120 days—though this time there is no indefinite ban on Syrians. Bolstering its odds of survival is the fact that the new order allows those who have already been granted refugee status or issued green cards to continue traveling, which should reduce the likelihood of chaos at airports. Still, there are bound to be protests and legal challenges in the days and weeks ahead.

For some perspective on the new order, what exactly it means for the people affected by it, and how likely it is to hold up in court, I called up Sarah Pierce, an associate policy analyst at the Migration Policy Institute who specializes in immigration law. Here's what she had to say.

VICE: What's your initial reaction to this thing—is it fair to say it's less harsh or narrower than the original, and what jumps out to you?
Sarah Pierce: It's definitely narrower than the original, for sure. One question I had going in was whether or not it was going to be a complete replacement of the prior executive order, because the administration has expressed it had plans to continue fighting for the prior executive order in the court system. I was a little surprised to see, today, that this executive order is replacing and revoking the prior one.

Which is to say that there's an implicit concession of defeat or error here?
Maybe. I actually wouldn't say that, because if you look at this new executive order, they spend quite a bit of time in section one going through the prior executive order and justifying why it was correct.

Right, almost a passive-aggressive thing with... the entire country and world.
Yeah, they definitely do their best to have the last word on it, for sure.

Do you think given that it does seem to be a little less all-encompassing, does it make sense for travel-ban opponents to see this as a victory?
This ban will still be protested, and it will still be challenged in the court system. But I think it will have less immediate and less, kind of visual effect, right? Because it doesn't affect individuals who are already legally authorized to come into the United States. So you're not going to have the same instance of individuals stuck at the airport who suddenly lost their right to enter the country mid-flight. That sent a very strong message to people and really inspired a lot of the protests, and that won't be happening with this one, because it's only applying to people who haven't yet received visas to travel to the United States.

But it's still suspending the refugee program, it's still suspending entries from these six countries, now, so I definitely think there will be pushback on it.

One other practical difference is there's a ten-day rollout period. Which we famously did not have with the original. How big of a deal is that practically, and what do you think it says that that was included this time around?
I think the administration was somewhat open in acknowledging last time that the implementation of the executive order was not ideal. [Department of Homeland Security (DHS) Secretary John] Kelly directly said so at a congressional hearing—that they should at the very least have run the order by Congress ahead of time. It's a ten-day delay to give the agencies some time to decide on the nuts and bolts of policies they'll be implementing on the ground.

Can you talk at all about the removal of Iraq from the list of countries affected by the ban? 
I thought it was interesting that the executive order says that since the prior executive order was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal. 

So the executive order has implied that Iraq has taken steps to get more in line with the US government's priorities as far as security vetting and travel. That was one of the reasons they were removed. I hope more information comes out on that in the future because that was kind of an interesting inclusion.

What about the nixing of the minority provision, which people took to be referring to Christians? That seemed to be the most nakedly unconstitutional provision because it referred to religion. How significant is that change?
I think a lot of the changes in this executive order are designed to help it be immune from the court system, and that is definitely one of them. I don't think it will make the executive order entirely immune from legal challenges—I know that groups are preparing right now to file more legal challenges. I think they will still argue Establishment Clause and religious discrimination issues. But instead they're going to be arguing just the issue that these six countries are Muslim-majority and prior to the executive order, Trump said he wanted to implement a Muslim ban.

What's your sense of the viability of any nascent legal challenges generally?
Anyone who is trying to challenge this order is going to have a problem with standing—with finding individuals who have an injury in fact and have rights under the Constitution to challenge this order. Because it doesn't apply to anyone who's currently within the United States or who's outside the United States and has the right, currently, to travel. So you might see a challenge, for example of a US citizen who has a husband, for example, outside the United States and can't enter. But historically individuals who are not in the United States have very few rights under the Constitution.

In the Ninth Circuit case, they found third-party standing—that the states could assert standing of the state universities, which were in the process of applying for individuals to come in to work as interns, employees, scholars, etc. It seems like that standing would potentially be viable under this new one.

This order leaves open the door to other countries being added to the list of banned nations in the near future. Was that in the original, too, and do we have any idea of which countries those might be?
So the deal is that they're suspending entries from these countries for a certain number of days. And then during those days, just like in the original, DHS will come up with a report on the information they need from countries in order to properly vet individuals who are trying to enter the US—and DHS will come up with a list of countries that do not adequately provide that information. Then, each of those countries will have so much time to begin providing it, and if they don't, then they would be added to the list of countries who have a suspension on their entries. And that is something that was in the original as well.

As far as what countries they might be thinking of, we don't know. Kelly in one of the congressional hearings following the original executive order, implied there were no countries currently under consideration. I'd be surprised if it came out in the end that the list has no countries on it. But we don't know what countries they're thinking about adding.

Do you have a sense yourself of where it might be plausible given this language about improving vetting—are there countries known for mediocre vetting?
This provision has always kind of puzzled me, because when someone from a foreign country is applying to enter the United States, they're filling out their own application and their government doesn't necessarily get involved in that application. For each national trying to enter the United States, there's no report from that nation's country about whether or not that person is a good person.

Are they asked by the United States, say, via the State Department, on some kind of back-channel?
Maybe in a special scenario, that might occur. But I'm not aware of it occurring regularly at all. So I've never been totally sure what they mean by countries that aren't providing adequate information. I'm hoping that, just like with many things on this executive order, more information will come out as it's implemented. 

Does it make sense for citizens of countries not on this list to accelerate their travel plans given the possibility other countries will be added in the near future?
After DHS comes up with this list of countries that aren't supplying adequate information, those countries will be notified and have 50 days to get in line with the US government's expectations before the nationals of their country are barred from entering the United States. So ideally nationals of those countries will have 50 days' notification that their country is potentially going to be barred in the future.

The administration cites 300 refugees being investigated for links to radicals—do you know what they're talking about?
No, that's a new one for us—we're still trying to figure that out as well.

So we again have a blanket ban on refugees for 120 days. What are the humanitarian implications here given what's going on in Syria, Africa, and elsewhere around the world?
We have record global humanitarian displacement right now. So the fact that such a large country is kind of putting such a pause on refugee admissions definitely has huge global complications. At the same time, though, under this executive order and the last one, they limited refugee admissions to 50,000 a year—and we're actually coming very close to that number. We're already the majority of the way there the last time I looked, in 2017.

So the pause is a big deal, but if we're going to stick with 50,000 refugees a year, the pause probably isn't affecting how many people are going to come into the United States in 2017.

Do you think the order will survive a challenge in court?
I can't say with any certainty. This is all new ground. We've never seen a president implement this type of authority so broadly, especially with respect to barring nationals of certain countries. No one knows for sure whether or not this will survive the court system.

This interview has been lightly edited and condensed for clarity.

Follow Matt Taylor on Twitter.

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