On Friday, a day after an appeals court ruled that Donald Trump's temporary ban on refugees and citizens from seven Muslim-majority countries should remain suspended for now, it was reported that the Trump administration may be writing a new version of the executive order. That could be a sign that the White House is preparing for the eventuality of losing a Supreme Court battle—in case the sweeping executive order is struck down, Trump will have the option of signing a similar order, but one that that won't get suplexed by tag-teaming federal judges as soon as the government tries to implement it.
It remains uncertain whether the government will appeal the decision to suspend the ban, and of course the issue of whether the ban is legal has yet to be unresolved. But common sense suggests that a more carefully considered and implemented order restricting immigration would have a better chance of prevailing in court. Though the president has broad powers when it comes to immigration, anything Trump does will likely be challenged by liberal state attorneys general and civil rights groups. And since judges will surely remember Trump's "total and complete shutdown" speech back in 2015, the president will have to persuade courts that he's not trying to implement a "Muslim ban" by another name.
To learn more about what could be in the sequel to the executive order, I got in touch with immigration law analyst Muzaffar Chishti, an attorney and the director of the New York University office of the Migration Policy Institute. He told me Trump has a few options that could potentially earn him some lucky breaks, but nothing would be a slam dunk in today's legal environment.
VICE: Is there a way Trump could write another executive order that restricts immigration but avoids a lawsuit?
Muzaffar Chishti: Let me be clear: Anything he does is going to attract a lawsuit. They have to take that as a given. That's going to be the roadmap now on not only executive actions, but also every action
OK, so what might Trump put in a new executive order that would get a judge's approval?
Hints of what could be more defensible—given the history of the litigation so far—came from the arguments at the Ninth Circuit. [There's] a suggestion by the Justice Department counsel that [the ban] could just be applied to citizens of certain countries who have not entered the United States yet, or who have never entered the United States and would be seeking admission for the first time.
Why would narrowing it to people who haven't entered the US before be a better option?
Because the issue is first of all standing. Who can bring the lawsuit is really the most important issue procedurally. The state of Washington brought this, so what's the beef? The state is concerned about scholars and researchers who are at their public universities, who have been affected by this because they can't come back. That affects the research at the university. There are employees hired by Amazon and Expedia who have travelled abroad and they can't come back. So [Washington's attorney general] showed a nexus between the order and the interests of the state of Washington.
So are people who have never been to the US better targets for the new executive order? Or would it be easy for them to bring suit too?
[Lawyers in the Washington suit] asserted "We have some people in the state of Washington who would like to be united with their families." That is theoretically a good argument, but I'm not sure how much water it holds. By that definition, everybody would be able to bring a lawsuit against the federal government for anyone who has been denied a visa anywhere in the world.
This new version of the order wouldn't have to take that into account, right? Because people who aren't in the US aren't protected by the Constitution?
Wrinkles have been introduced now that are beginning to affect immigration policymaking. Cases have come down from the Supreme Court in the context of Guantanamo Bay detainees. Many cases came to the Supreme Court asserting that you cannot indefinitely hold people in Guantanamo. Two of those cases asserted that you cannot tell us the Constitution does not apply to Guantanamo. So it's Guantanamo jurisprudence, if you like that term, that has now begun to affect the authority of the president, even in the immigration context. That's a sea change.
Was there anything in the wording of the original order they'll probably tighten up in this version?
The mistake they made in the preamble of this order is that they involve 9/11, but then did not proceed to any country whose citizens had attacked us on 9/11. So judges said, "What's the rational basis? You're not including everyone who could invoked harm."
So it might be a good idea to take out that 9/11 stuff, and make the preamble a little more focused?
He could reference the Obama order on the visa program. Or the acts that gave President Obama the authority to do that. That would have been much more rational and related to the group that he was going to target. They could do what President Obama did, and [tighten up vetting after the Paris attacks]. That was never [seriously] challenged. You could say that was clearly in response to increased terrorism, but was not a complete ban. It didn't say no one from these countries can come, but there was extra scrutiny. He could do that.
Would he just need to say "extra scrutiny," or would there need to be more?
He could say that people of these countries will be given extra scrutiny at JFK or anywhere else. Or they'll be asked to come to X, Y, and Z for additional screening. It's the complete ban that created a problem for him. As the court said, this was both "wholly broad and utterly inclusive." "Wholly broad" im that it included every citizen of these countries from a 95-year-old grandmother to an infant. He could now say, Well look, I'll do it only for males over the age of 40. Whatever it is, pick your number, just so that it looks less broad. Or we could say that we'll only give you extra screening, not ban you.
Age discrimination wouldn't be a problem?
Constitutionally, it doesn't say anywhere that you can't discriminate. You can't say that we never do. There just must be a rational relationship between the discriminatory act and the intended goal.
What could Trump do that would make courts look favorably on an absolute ban from certain countries?
Increase the number of countries included so that it will look a little more rational. [Trump's first order] didn't include many other countries in the world which had been engaged in terrorism, including countries whose citizens attacked us on 9/11.
So the important thing is to make it perceived as rational? If judges perceive the order as rational, it won't get shut down?
I think the more important thing is that law is not a science. You don't get similar outcomes in different situations. That's why we have to fight for opinions.
Follow Mike Pearl on Twitter.