Trump Revises Immigration Ban to Pass Court Muster

Trump Revises Immigration Ban to Pass Court Muster
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President Trump, who remained out of sight at the White House Monday, revamped his controversial order to temporarily bar some immigrants and refugees from U.S. entry, while attempting to skirt new court challenges and deliver on a central promise of his campaign.

The president released a revised order, but it was unclear whether it would achieve his stated aims of clamping down on would-be terrorists he believes could enter the United States from among six Muslim-dominated nations, while he sets up an “extreme vetting” process within the departments of State and Homeland Security.

“The U.S. government must ensure that those entering this country will not harm the American people after entering,” DHS said in a statement. “The executive order … protects the United States from countries compromised by terrorism and ensures a more rigorous vetting process.”

Washington state attorney general Bob Ferguson, who successfully blocked Trump’s Jan. 27 order in court by arguing harm to the economic and business interests in his state, said at a news conference in Seattle that the government’s decision to rescind its earlier order and issue revised policy represented a “significant victory,” even as Washington state and other stakeholders weigh the new order’s constitutionality and legality.

Ferguson said that while the president’s revised order was billed as new, it was a continuation of the policy Trump issued one week into his presidency, maintaining a federal focus on Muslim travelers and refugees as a national security danger to the homeland. 

Behind the scenes, news of Trump’s immigration order was overtaken by a new controversy: his weekend charge that President Obama and his administration ordered wiretapping of Trump and his associates in Trump Tower last year. The president offered no hard evidence to support his suspicions, which were denied by Obama through a spokesman. Trump asked the legislative branch to investigate whether he was the subject of federal surveillance as a presidential candidate.

Later Monday, House Republicans unveiled a proposed measure to replace the Patient Protection and Affordable Care Act of 2010, which the president’s spokesman called “an important step” toward repealing and replacing Obamacare. Trump’s spokesman said Monday a White House outline or plan to replace Obamacare would be sent to Congress later this week.

Following are questions and answers regarding the administration’s new travel and refugee ban and the president’s rescinding of the original version:

In what ways does the revised order alter the original? Rather than taking effect immediately, the new order offers officials abroad and in the United States 10 days, until March 16, to prepare, unless the courts step in again. The original order barred foreign national travelers and many refugees from seven countries (Iraq, Iran, Syria, Somalia, Sudan, Yemen and Libya), while the new, 90-day ban does not impact travelers from Iraq because of improvements the administration said the Iraqi government made to vetting controls after Jan. 27. 

Green card holders who are citizens of the affected countries are exempted, although they initially were impacted. Visa holders and dual citizens from the countries named are also exempted this time.

While Syrian refugees were barred from the United States indefinitely in January, they are now barred for 120 days, just like refugees from the other five affected nations, while a larger review of the costs of the U.S. refugee policy continues. The administration’s “temporary pause” maintains Trump’s 50,000 cap on the total number of refugees accepted by the United States for fiscal year 2017 (which ends in September).

The president also decided to drop references to prioritization of claims by the State Department for refugees “on the basis of religious-based persecution,” which enlarged critics’ claims that the administration sought to bar Muslims while granting entry to Christians from the named countries. Instead, the new order grants State and DHS authority to admit refugees on a “case-by-case basis” and in the “national interest.”

Is the new order constitutional and legal? While the president abandoned his initial plans to continue appealing the federal court decisions that blocked his January order, the administration may still find itself back in court. Those who oppose the new temporary ban are weighing options to challenge it and are awaiting the adoption by the executive branch of a more permanent “extreme vetting” policy in three months, which Trump promised under existing immigration and national security laws.

Does the temporary immigration/refugee ban impact the new vetting program Trump has in mind, to begin later this year? Yes. The administration continues to argue travelers and refugees from the six affected countries are not adequately evaluated in their home countries to help the United States know who may pose a national security threat. Iraq was removed from Trump’s initial order because lawmakers and the Pentagon successfully argued that if the administration wanted Iraq’s cooperation to battle ISIS, it was unwise to punish Iraqis who helped the U.S. military in their country and now want to travel to or build new lives in America. The administration said Iraq upgraded its vetting since January and was rewarded for it. The administration is undertaking a review of a broad menu of countries that vet travelers and refugees seeking to enter the United States.

Trump on Monday issued companion guidance to State, DHS and the Department of Justice tied to “heightened screening and vetting” for visa applications and “other immigration benefits.” His memo ordered the government to collect various data to be used as part of new vetting policies. For example, the president within 180 days wants a report estimating “the long-term costs” of the U.S. refugee acceptance program at federal, state and local levels, “with recommendations about how to curtail those costs.”

Critics of the president’s policies insist there is scant evidence of recent domestic terrorism plotted in the homeland by travelers and refugees from the six named countries.

White House Press Secretary Sean Spicer said Trump’s focus is just one part of a broader umbrella of terrorism protections. “This is one piece of the problem that we’re looking at to make sure that we keep the country safe,” he said.

Is the president’s revised order a “Muslim ban”? Opponents of Trump’s executive order said the latest revisions did nothing to mask the president’s intent, declared during his campaign, to ban Muslims from entering the United States. His rhetoric became a featured argument within the federal court challenges in January.

“This second Muslim ban is just as unconstitutional as the last one, and it isn’t making us any safer,” said Democratic National Committee Chair Tom Perez. “Don’t be fooled: [Trump] promised again and again during his campaign that he would single out and persecute a specific religious group, and that’s exactly what he’s trying to do now.”

California Democrat Rep. Adam Schiff, ranking member of the House Permanent Select Committee on Intelligence, said country of origin remains “a poor predictor of a propensity to commit acts of terror.” If it were a good predictor, he said, Pakistan would be on the administration’s list of six temporarily impacted countries. 

“However the administration dresses this up, the rest of the world – particularly the Muslim world – views the order as a ban on a particular faith. This will make it far more difficult to obtain cooperation from our Muslim allies,” Schiff added. 

Does the president’s revised order point to data about terror threats posed by travelers and refugees originating from Iran, Syria, Sudan, Somalia, Yemen and Libya? Aside from those country’s designations as state sponsors of terrorism or active combat zones, the administration believes its policies are pre-emptive, not defensive. The risk, Trump said in Monday’s order, “is unacceptably high” as the government’s vetting program continues to be developed.

Although Trump originally argued his January order was rushed because it was too risky too wait for a smoother rollout with outreach to affected parties, the White House said the 10-day notification before the newest order takes effect later this month was a dangerous delay forced on Trump by the U.S. Court of Appeals for the 9th Circuit, which blocked the president’s initial order. 

In addition, Trump said Attorney General Jeff Sessions “reported to me that more than 300 persons” who came to the United States as refugees and presumably are still in the country are currently the subjects of FBI counterterrorism investigations.

DHS said in a statement Monday that it would publicly and periodically release data to support the president’s ban, including the number of foreign nationals charged with terrorism-related offenses in the United States, and the number deported because of terrorism-related “activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons.”

The department also said it would report “the number and types of gender-based violence against women, including so-called `honor killings’ in the United States by foreign nationals.” The term refers to violence, including the murder of relatives, often girls or women, motivated by grievances perceived to be of cultural dishonor within families.

A private Westat report completed in 2014 with funding from the Obama administration’s Justice Department said there was no reliable data in the United States to tally cases of “honor violence,” which are crimes not condoned under Islamic law. Extrapolating from United Nations’ worldwide data and U.S. demographics, the study’s authors tied an estimated 23 to 27 killings annually in the United States to such family violence. But the report did not suggest that foreign national refugees or immigrants traveled to the United States and committed such crimes.

Alexis Simendinger covers the White House for RealClearPolitics. She can be reached at asimendinger@realclearpolitics.com.  Follow her on Twitter @ASimendinger.

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