The new executive order is guaranteed to be challenged in court, just like the original was. But the new order is going to be much easier to defend.
Advocates now have to decide where they’re going to file a challenge, and are likely to pick a court they think might be skeptical of the ban. “The challengers can pick their best shot, which almost certainly means they will proceed with a Ninth Circuit case,” points out Temple University law professor Peter Spiro, given the skepticism judges there showed the original version of Trump’s ban.
Then it’s going to be up to the circuit court to figure out whether the new order requires a separate court case, or whether it can be rolled into the existing lawsuits against the first version of the ban.
Either way, the new ban will be easier to defend — because it’s designed to affect immigrants who aren’t already in the US.
Noncitizens have some rights in the US, but different groups of noncitizens have different levels of rights. Legal permanent residents have some due process rights under the Constitution, and one of the biggest problems with the first order, legally speaking, was that it deprived those immigrants (as well as visa holders living in the US) of their ability to return to America after traveling abroad.
Now, the executive order only applies to people who’ve never been admitted to the US at all. “Prospective visa holders occupy the lowest rung in the constitutional hierarchy,” Temple University professor Peter Spiro says. “There are many precedents saying flat out that they have no constitutional rights at all.” Prospective visa holders can’t even sue on their own behalf; US-based institutions or people, like state universities, have to argue they are being deprived of rights because the immigrants aren’t allowed to enter.
If the Trump administration had just written the order this way the first time around, it might never have been struck down. But they didn’t, and it was.
The 9th Circuit (and other federal judges) subjected the original ban to a higher level of scrutiny than was strictly necessary. While judges don’t usually get in the habit of second-guessing national security decisions, Josh Blackman of South Texas College of Law says “the 9th Circuit imposed an (unprecedented) burden on the government to justify the ban” — forcing the Department of Justice to offer evidence that the seven countries named in the original ban posed a threat to national security. The judges reacted very badly when the DOJ tried to claim the executive order was outside the scope of judicial review entirely, and they were extremely skeptical of the government’s attempts to “clarify” the scope of the ban after it first came out.
A new version of the executive order can’t wipe the judges’ minds clean. And while the kerfuffle over the initial executive order doesn’t necessarily change the constitutionality of the new one, it could provide fuel to the fire for judges who believe the whole thing is just an attempt to put lipstick on a “Muslim ban” — or at least that by singling out six countries, it discriminates on the basis of nationality.
“It’s hard to imagine,” Temple’s Spiro told Vox before the text of the new ban was issued, “that it won’t look reverse engineered, if not concocted.” (That’s especially true because leaks out of the federal government, in the weeks before the new ban was signed, made it clear that many federal analysts felt they were being asked to justify the ban retroactively.)
Whether it’s appropriate for federal judges to consider this history when they examine the new ban is an open question, constitutionally. (It depends on what standard of review they think is appropriate.) It would be pretty aggressive for federal judges to reject the new ban, despite the changes that have been made, because the history of the ban’s implementation convinced them it was motivated by Islamophobic animus rather than national security concerns. But if the legal battle over the first version of the executive order is any indication, at least some federal judges are ready for a fight.
