New York – The new, more
narrowly tailored temporary travel ban President Donald Trump
signed on Monday will be more difficult to challenge
successfully in court, legal experts said.
They said that since his order no longer covers legal
residents or existing visa holders, and makes waivers possible
for some business, diplomatic and other travelers, challengers
are likely to have a harder time finding people in the United
States who can legally claim they have been harmed, and thus
have so-called "standing" to sue.
Trump's first executive order signed on January 27 banned
travelers from seven Muslim-majority nations - Iran, Iraq,
Libya, Somalia, Sudan, Syria and Yemen - for 90 days and halted
refugee admission for four months, barring Syrian refugees
indefinitely. Its hasty implementation caused chaos and protests
at airports. The order was hit with more than two dozen
lawsuits, many that claimed it discriminated against Muslims.
The new ban, which goes into effect on March 16, removes
Iraq and adds categories of people who would be exempt from the
order. The Trump administration said the executive order is
necessary for national security reasons.
It also lists groups of people that could be eligible for
waivers, including travelers who have previously been admitted
to the United States for work or school, those seeking to visit
or live with a close relative and who would face hardship if
denied entry; infants, young children and adoptees or people in
need of medical care, employees of the US government and
international organisations among others.
Read also: What the Trump travel ban cost
All the exceptions make the new order "a lot harder to
attack," said Andrew Greenfield, an immigration attorney with
Fragomen law firm in Washington D.C.
Trump had promised to make the new directive harder to fight
in court and many of the changes were expected.
"They dotted their 'i's' and crossed their 't's' in trying
to anticipate what litigation might result," said Stephen
Yale-Loehr, a Cornell Law School professor who specializes in
immigration. He said opponents might still be able to find
plaintiffs - a US citizen could potentially sue if the
government denies a waiver to their foreign spouse for an
arbitrary reason, for example.
'Do our homework'
In a legal challenge to the original order, the state of
Washington was successful in preventing it from being carried
out. A federal judge in Seattle and then an appeals court in San
Francisco ruled that Washington could claim standing, in part
because the order adversely affected legal permanent residents,
known as green card holders, in the state. More than 100
businesses, including many of the best-known tech companies,
filed briefs in court that argued their employees were harmed.
Bob Ferguson, the Attorney General for Washington State said
on Monday that he will likely decide on the next litigation
steps this week after consulting with state universities and
businesses about potential harms.
"We need to do our homework and be thoughtful about this,"
Ferguson said.
The US Department of Justice, in a filing in Seattle
federal court on Monday, said the new order applies "only to
those who are overseas and without a visa."
Foreign nationals outside the country who do not have a US visa do not have the same protections under the US Constitution as people already here, legal experts said.
Rosemary Jenks, the director of Government Relations at
NumbersUSA, a conservative group that favors less immigration
overall, said that the new order would leave the state of
Washington having to argue on behalf of unidentified foreign
nationals who have not been screened, vetted or processed yet by
US authorities.
"That would be a pretty big stretch," Jenks said. And unlike
the old order, the new one lays out with more detail why the
specific countries were selected, she said.
Attorneys challenging the ban, including the American Civil
Liberties Union said there were still questions about whether or
not the ban is justified by national security reasons and the
revisions do not address concerns that the order discriminates
based on religion.
Adam Lauridsen, a Keker & Van Nest attorney in San Francisco
representing students challenging Trump's first order, noted the
revised directive still targets Muslim-majority countries.
Stephen Legomsky, chief counsel at US Citizenship and
Immigration Services in the previous Obama administration,
pointed to statements by Trump about wanting a Muslim ban.
"That evidence is baked in, you can't change the past," said
Legomsky. He said, however, that does not mean the inevitable
legal challenges will ultimately be successful in the likelihood
that they reach the US Supreme Court. "It's not a slam dunk."