Politics

President Trump signed an executive order Monday ordering new travel restrictions for residents of six Muslim-majority countries as well as a temporary ban on refugees from around the world. This directive comes after Trump's original executive order was rebuked in the federal courts.

The new ban, which takes effect March 16, halts travel for 90 days for residents of Iran, Libya, Somalia, Sudan, Syria and Yemen. The refugee suspension will last 120 days.

Analysis Reaction

Legal experts: New travel ban has a better chance of surviving court challenges than the old one

Liberal and conservative legal experts, including those who served in Democratic and Republican presidential administrations, said President Trump's new travel ban has a better chances of surviving legal challenges when compared to his first executive order, which has been held up in federal courts.

Here's what a few of them told the Los Angeles Times:

The new travel ban is tainted by all the same evidence of religious discrimination that doomed the old travel ban. It affects fewer people, and people with fewer ties to the United States, so that makes judicial intervention a bit harder. On the other hand, the way the Trump administration manipulated the roll-out of the new ban according to the ebb and flow of the news cycle undermines the administration's demand for deference on the topic of national security.

Margo Schlanger, University of Michigan law professor and former head of civil rights for the Department of Homeland Security under President Obama
John Yoo in 2010. (Laura Morton / For The Times)
John Yoo in 2010. (Laura Morton / For The Times)

I think the new order will withstand judicial scrutiny. Because it grants admission to all existing visa holders and permanent resident aliens, it is difficult to see who has standing to challenge this order.... Aliens outside our territory with no pre-existing connection to the U.S. do not have rights under the Constitution that can be recognized in court. This time, the order explicitly relies on the findings of the last administration and the agencies that the six nations in question are state sponsors of terrorism or are countries where terrorist [activities] are matters of high concern. The editing out of special exceptions for Christian minorities undermines criticism that this order arises from anti-religion bias. It will be much harder to show connections between anti-Muslim statements made during the campaign and the motives behind this order...

John Yoo, UC Berkeley law professor who worked in President George W. Bush’s Department of Justice
Erwin Chemerinsky in 2009. (Robert Lachman / Los Angeles Times)
Erwin Chemerinsky in 2009. (Robert Lachman / Los Angeles Times)

This is certainly better drafted than the prior version, especially with regard to not excluding those who have the lawful right to be in the United States. But it still designates majority Muslim countries where there is no linkage to terrorism in the United States. This still runs afoul of the 1965 Immigration Act, which prohibits discrimination based on national origin. And based on prior statements of President Trump that Christians would be allowed in, this still can be challenged as a Muslim ban. Put simply, it corrects some of the problems courts found with the prior executive order, but many of the serious problems remain.

UC Irvine Law School Dean Erwin Chemerinsky

The new travel limitation is clearly more defensible as it follows the roadmap of concerns raised by the 9th Circuit [Court of Appeals]. Thus, it can be reasonably argued that the facial invalidity of the last order has been addressed and corrected. Of course, an order can be fine on its face and still be improperly applied. Moreover, it can be legitimately asked -- given existing vetting procedures -- whether an executive order is needed at all, but that is a judgment for the president. In matters of foreign affairs, the judiciary will defer to the president so long as his actions have a conceivable rational basis and do not transgress either the Constitution or statutory limitation.

Douglas Kmiec, Pepperdine University law professor who worked in the Department of Justice under President Reagan and President George H.W. Bush

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