WASHINGTON (AP) — After a federal appeals court unanimously refused to immediately reinstate his travel ban last month, President Donald Trump tweeted a warning: “SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE!”
The courts did not get to decide on that case before Trump replaced the travel ban Monday with a much narrower version — one which critics say is more palatable but still problematic.
“Bottom line is the president has capitulated on numerous key provisions that we contested in court about a month ago,” said Washington Attorney General Bob Ferguson — who led the legal challenge to the initial ban — at a news conference Monday.
The original ban was motivated in part “to target predominantly Muslim countries,” Ferguson said. He added, “We still have concerns about that intent.”
This time, Trump gave 10 days’ notice before the order goes into effect on March 16. The new ban temporarily bars new visas for citizens of six predominantly Muslim countries — one fewer than the original, with Iraq removed from the list. It does not apply to travelers who already have visas.
Ferguson and Virginia Attorney General Mark Herring, both Democrats, said they were evaluating whether to bring further legal challenges before the new order takes effect March 16.
Like the first order, the new one suspends the U.S. refugee program for four months and cuts the number of refugees the U.S. would take in from 110,000 to 50,000.
The measure applies only to refugees who are not already on their way to the United States and to people seeking new visas. It removes language that gave priority to religious minorities. Critics had said the language was designed to help Christians get into the U.S. and to exclude Muslims.
A spokesman for the 9th U.S. Circuit Court of Appeals, which upheld a Seattle judge’s order restraining the ban in the Washington case, said the court was evaluating the new executive order’s effect on the existing case. The Justice Department filed papers Monday in federal court in Seattle, arguing that the restraining order should not block the new ban from taking effect.
The 9th Circuit’s ruling did not deal with that argument, but the court said it would evaluate it after further briefing. The states’ claims “raise serious allegations and present significant constitutional questions,” the judges wrote.
“It still sends a horrible message to the world, to Muslim-Americans, and to minority communities across the country, without any demonstrable benefit to national security,” Virginia’s attorney general Herring said.
The American Civil Liberties Union promised “to move very quickly” to try to stop the order.
Nevertheless, the new changes will make it “much, much tougher” for a federal judge to block the ban, said New York immigration attorney Ted Ruthizer.
Courts could find it compelling that the order does not cover all Muslims from all countries, he said. And judges have a history of upholding portions of immigration law that discriminate on the basis of race and nationality when national security is an issue.
The order says people from Somalia, Iran, Syria, Sudan, Libya and Yemen “warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats.”
Intelligence analysts at the Department of Homeland Security have questioned that rationale, concluding that citizenship is an “unlikely indicator” of terrorist ties.
Washington state and Minnesota argued in their successful legal case against the original order that it was motivated by Trump’s desire — stated during the campaign — to ban Muslims.
“There’s still the argument that, when you take down all the window dressing, it’s still a religion ban, but these are the kinds of nuances that the courts will look at,” Ruthizer said.
Top Republicans welcomed Trump’s changes. Sen. Orrin Hatch of Utah said the revised order makes significant progress toward a ban that avoids hindering innocent travelers or refugees fleeing violence and persecution.
House Speaker Paul Ryan said the order “advances our shared goal of protecting the homeland.”
Texas Attorney General Ken Paxton, who backed the first ban, said in a statement that the president had the authority to secure the nation’s borders “in light of the looming threat of terrorism.”
The response abroad was more critical. Somalia’s new president, Mohamed Abdullahi Mohamed, acknowledged his nation’s security troubles but said Somalis “have contributed to the U.S. economy and the U.S. society … and we have to talk about what the Somali people have contributed rather than a few people who may cause a problem.”
Iran reiterated that it would bar travelers from the U.S. in retaliation, and a Yemeni political analyst, Hassan Al-Wareeth, denounced the new ban as hypocritical. It doesn’t affect some Gulf and Arab countries such as Saudi Arabia, which, he argued, have had many citizens involved in terror attacks.
Critics said the new order failed to address their concerns that the measure attempts to enact the Muslim ban Trump advocated during his campaign. Washington state, joined by Minnesota, argued that the original order violated the First Amendment’s separation of church and state.
Larry E. Klayman, a founder of and lawyer for the conservative group Freedom Watch, supported the original ban when it was before the appellate court and called the new version “quite modest.”
“Right now, we’re in a state of war with certain countries, and this is a reasonable approach to it,” Klayman said.
Additionally, a question remained over whether the new ban conflicted with federal immigration law, said Jorge Baron, executive director of the Seattle-based Northwest Immigrant Rights Project. His organization filed a class-action complaint over the initial ban and said it would amend its arguments in light of the new one.
“Our immigration laws specifically say you cannot discriminate on basis of nationality in this process,” Baron said. “The president can’t rewrite the law by executive order.”