Under siege by liberal lawsuits and court challeges, President Donald Trump has tried a new approach to his travel ban. The White House has promised a new executive order that officials say will address concerns raised by judges that have put the policy on hold.
Here are three things you need to know about the new travel ban — and how it’ll be “implemented flawlessly.”
1) WHEN IS THE ORDER COMING, AND WHAT WILL IT SAY?
The White House says it expects to issue a new order this week.
Trump aide Stephen Miller said at a Fox News town hall last week that the new order would be very similar to the first, with “mostly minor technical differences” in response to opinions by judges who have blocked it.
The Justice Department has said the Trump administration would be abandoning the original order, which should render moot ongoing court challenges to that order. But the president and the White House press secretary have also recently said that they intend to fight for the merits of the original order in court, even as they draft a replacement.
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On Monday, the San Francisco-based 9th U.S. Circuit Court of Appeals denied a request from the Justice Department to put Trump’s travel ban case on hold until he issues a new order.
The new order could go into effect immediately and would not be blocked by the court ruling that has kept the existing order on hold, said David Levine, a professor at the University of California, Hastings College of the Law in San Francisco. Levine said new regulations and laws are assumed to be legal until a court says otherwise. “It’s valid unless it’s invalid,” Levine said.
2) CAN WE EXPECT MORE LIBERAL COURT CHALLENGES TO THE ORDER?
Insiders say that the new order will remove Iraq from the list of countries facing a temporary U.S. travel ban. Citing the latest draft in circulation, they said the document also no longer singles out Syrian refugees for an indefinite ban and instead includes them in a general, 120-day suspension of new refugee admissions.
The officials spoke on condition of anonymity because they weren’t authorized to discuss the order before it is signed.
There are likely to be various, other technical changes to try to head off any attempt by Washington state and Minnesota, the two states whose lawsuit led to a court order that halted the order, from moving quickly for a court order putting any new ban on hold.
In refusing last month to reinstate the travel ban, which a judge in Washington state had blocked from taking effect, the San Francisco-based 9th U.S. Circuit Court of Appeals identified “significant constitutional questions” with the administration’s plan to temporarily suspend the refugee program and to halt immigration from seven Muslim-majority nations.
The new order maintains the ban for the other six countries — Iran, Libya, Somalia, Syria, Sudan and Yemen.
It’s hard to imagine a “bulletproof” order that could assuage the concerns of the immigrant rights community and other potential challengers, said Jon Michaels, a UCLA law professor.
“My sense is, there will be challenges,” Michaels said.
3) WHAT MIGHT HAPPEN TO THE EXISTING LEGAL CHALLENGES?
If the original executive order is formally rescinded and replaced, as is the prerogative of a president, then lawsuits challenging it would be effectively nullified as the focus turns to the new policy, legal experts say.
Even so, arguments made by lawyers for Washington state and Minnesota that appeared to sway the 9th Circuit may be recycled in another or amended legal challenge.
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But it may not be that easy for the administration to escape the shadow of the current challenge before the 9th Circuit, said Simona Grossi, an expert in federal court procedure at Loyola Law School in Los Angeles.
The new order would have to be free of the legal loophole problems raised by the original order and the administration would also have to show that the original order will not be resurrected in the future, she said.
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The Associated Press contributed to this article