The Department of Justice is weighing whether or not to appeal a decision issued by the Ninth Circuit Court of Appeals to deny reinstating President Donald Trump's immigration order while its legality is established, according to multiple reports Friday.
That's because the White House is apparently rewriting the controversial executive order — which temporarily bans immigration from six predominantly Muslim countries and permanently from Syria — so that it has a better chance of withstanding legal challenges.
Trump tweeted on Thursday night that he intends to appeal the Ninth Circuit's decision: "SEE YOU IN COURT," he wrote shortly after the judges issued their 29-page opinion. But he wavered on that pronouncement Friday, saying he "very well could" issue a new order next week.
Legal experts say rewriting the order is likely a much better option for the Trump administration than sticking with the "extreme vetting" order in its current form, which would likely result in more litigation.
"There are a variety of things the government could do to help their case. It's just a matter of how much they're willing to change the executive order," said Stephen Yale-Loehr, a professor of immigration law at Cornell University.
Yale-Loehr said that the order's most controversial sections — 3(c) and the near entirety of section 5, which were the subject of a lawsuit brought by Washington and Minnesota against the government that ultimately resulted in the temporary restraining order (TRO) placed on the ban — would either have to be changed significantly or removed entirely if the administration wanted to shield itself from further litigation.
The key section
Section 3(c) of the immigration order stipulates that "immigrant and nonimmigrant entry into the United States of aliens from" Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen "would be detrimental to the interests of the United States," and that Trump would "hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order."
The original order did not list the countries specifically but referred to those targeted in an Obama-era visa-waiver policy, the Department of Homeland Security later clarified.
The nationwide enforcement of Section 3(c) was restrained "in its entirety" last week by US District Judge James Robart, who sided with the states' argument that the order caused "significant and ongoing harm" to "substantial numbers of people, to the detriment of the States."
When Robart asked the government lawyer, Michelle Bennett, if there had been any terrorist attacks by people from the seven counties listed in Trump's order since 9/11, Bennett said she didn't know.
"The answer is none," Robart said, according to Reuters. "You're here arguing we have to protect from these individuals from these countries, and there's no support for that."
Even after appealing the restraining order to the Ninth Circuit, the government still had difficulty proving that citizens from the seven countries posed an elevated terror risk above others.
"The proceedings have been moving very fast," the Department of Justice lawyer, August Flentje, told Ninth Circuit Judge Michelle Friedland when she asked whether the government had any evidence connecting the seven nations targeted by the order to terrorism.
Another option — rather than gutting Section 3(c) altogether — would be to stipulate that people from those countries have to go through greater screening procedures to get a visa, Yale-Loehr said.
"But they'd need to outline what those new procedures are in a revised executive order to make them comply with due-process requirements," she said.
The due-process clauses in the Constitution safeguard people from arbitrary denial of life, liberty, or property by the government outside of the sanction of law. The government had argued before the Ninth Circuit that the TRO should apply only to lawful permanent residents, because as it stands it "covers aliens who cannot assert cognizable liberty interests."
But the judges determined Thursday that limiting the scope of the TRO, as the government requested, would "on its face omit aliens who are in the United States unlawfully, and those individuals have due process rights as well."
"The government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim," the judges wrote.
In need of 'an adequate factual basis'
Critics of the order have said that the countries it targets seem arbitrary, since it does not include countries that have posed serious terror threats in the past, including Pakistan, Saudi Arabia, Egypt, and the United Arab Emirates. The immigration order cites the September 11, 2001, terrorist attacks three times as justification, but the 9/11 hijackers were from Egypt, Saudi Arabia, the United Arab Emirates, and Lebanon.
Lyman Stone put it bluntly in an article for The Federalist: "Most reasonable people would agree that banning people who have never been associated with any terrorist attack in our country (say, Bhutanese Hindus) doesn’t make much sense."
Litigation over the order will likely continue until the government provides "an adequate factual basis for singling out these specific countries as distinct sources of risk," Richard Pildes, a professor of Constitutional Law at New York University, told Business Insider in an email.
Trump has argued that the seven countries named in the executive order "are the same countries previously identified by the Obama administration as sources of terror." The DOJ similarly claimed in its filing to the US Court of Appeals that the listed countries had "a previously identified link to an increased risk of terrorist activity."
Yet the Ninth Circuit judges expressed skepticism of Trump's use of Obama's policy to justify his immigration ban.
"Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated," the judges wrote.
"We cannot conclude that the Government has shown that it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,'" they added.
Section 5 of the immigration order — which stipulates a "realignment of the US Refugee Admissions Program for Fiscal Year 2017" and a suspension of the US Refugee Admissions Program (USRAP) for 120 days — has also proved controversial.
The nationwide enforcement of sections 5(a), 5(b), 5(c), and 5(e) — along with 3(c) — was blocked by the Seattle judge's retraining order, which was upheld by the Ninth Circuit on Thursday.
"In a best-case scenario, in terms of their chances of winning in court, they would not completely suspend the refugee-admissions program but require some kind of additional screening procedures for refugees and start rolling those out," Yale-Loehr said.
"Section 5(c), which bars anyone from Syria from entering the US, would also have to go," he added. "Any argument they make for keeping that in would result in the same kinds of legal challenges presented by Section 3(c), which poses the question of, 'Why have people from these countries been deemed more dangerous than others?'"
'The States' claims present significant constitutional questions'
Sections 5(b) and 5(e) — which indicate that the US will "prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality" — have also been blocked, pursuant to the TRO, to the extent that it "purports to prioritize refugee claims of certain religious minorities."
The TRO also prohibits the government from "proceeding with any action that prioritizes the refugee claims of certain religious minorities."
Civil-rights organizations, such as the American Civil Liberties Union and the Council on American-Islamic Relations, had cited the order's prioritization of religious minorities as evidence of discrimination in favor of Christians, who are minorities in the seven countries that the order targets.
Their arguments were bolstered last month by Trump's interview with the Christian Broadcasting Network, during which he said that Syrian Christians would be given priority when applying for refugee status.
"The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims," the Ninth Circuit judges wrote on Thursday.
"In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a 'Muslim ban' as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order," the judges continued.
"The States' claims raise serious allegations and present significant constitutional questions ... we reserve consideration of these claims until the merits of this appeal have been fully briefed."
Trump's best bet at passing an immigration order may be to let this one die, and he's apparently considering it posted first on http://lawpallp.tumblr.com