The US government issued a revised executive order on March 6 after legal challenges against a Jan. 27 order entitled 'Protecting the Nation from Foreign Terrorist Entry into the United States' resulted in a temporary restraining order. Barring any legal challenges, the order will be officially implemented on March 16. The new directive will ban citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the US for 90 days; the administration of President Donald Trump removed Iraq from the list of blacklisted countries following negotiations with the Iraqi government, and in light of its role in fighting the Islamic State in conjunction with US forces. As with the original executive order, the action is intended to mitigate the threat posed by foreign terrorists, while simultaneously allowing the US government time to strengthen its visa issuance procedures.
- The Trump Administration decided to issue a revised executive order to address constitutional concerns lodged against the original order.
- Despite the streamlining, it remains likely that legal challenges will be issued against the new order.
- The delayed implementation will likely mitigate the widespread confusion that erupted at US airports after the original executive order was signed in January.
Order Revisions and Specifications
The revised order, which retains the title 'Protecting the Nation from Foreign Terrorist Entry into the United States,' effectively replaces the previously suspended executive order. The Trump Administration made specific clarifications to the executive order, stating that lawful permanent US residents (green card holders) and dual nationals will be excluded from the ban.
The scope of the initial order had initially created confusion as to whether properly vetted travelers would be barred entry into the country. The new revision also exempts individuals who already have an approved and valid visa to travel to the US. While the new order specifically permits valid visa holders, legal residents, and dual nationals to enter the US, these travelers could still face additional security checks and processing delays at airports.
Homeland Security Secretary John Kelly had previously stated that enhanced security checks could be supplemented by asking travelers to provide social media passwords. This protocol is one of several methods the Department of Homeland Security (DHS) is thinking about implementing; however, no policy decisions have been made to officially put it into practice.
The new policy will be implemented on March 16; the grace period of 10 days will allow for possible legal challenges against the revisions, and ensure that any travelers who were in transit during the signing will not be barred entry. As with the previous order, additional countries could be added to the list of blacklisted countries via a presidential proclamation.
Possible Legal Challenges
The Trump Administration worked to streamline the revisions to address concerns raised by a federal appeals court; the administration is confident that the new executive order will hold up against any legal challenges that could be enacted during the grace period. It remains likely that the revisions could face numerous new lawsuits in the coming days.
The Department of Justice (DOJ) strongly believes the order is constitutional since it exempts fully vetted travelers, such as green card holders, and instead focuses on foreigners who do not have a valid visa to travel to the US. Some courts could reject this argument and claim that some of the foreigners could retain the right to challenge the entry ban.
Lawsuits could also be made against the intent of the order. Previous statements made by the Trump Administration and close aides have been used as evidence of intentional discrimination; challengers have argued that the order violates the Establishment Clause of the First Amendment by illegally targeting individuals based on their religion.
Challengers could also undermine the government's rationale for the executive order, since the White House delayed the signing of the directive on multiple occasions. Ultimately, this postponement could be used in court against the Trump Administration's argument that the order is urgently necessary for the nation's security.
The newly revised directive states that the first executive order signed on Jan. 27 would be revoked as of March. 6. It was originally unclear if the ongoing litigation against the initial executive order would proceed, or if the lawsuits would ultimately be dismissed. The DOJ had stated that once the revised order was issued, the original executive order would be rescinded and nullified. The White House, on the other hand, issued contradictory statements, insisting on continuing litigation on the merits of the initial order.
- Organizations should continue to consult with legal counsel regarding the potential impact on traveling employees.
- If abroad, citizens of the impacted countries should consult with their local US diplomatic mission before attempting travel to the US for the next 90 days.
- Travelers to the US arriving from the impacted countries should prepare for increased scrutiny at US entry points for the foreseeable future.
It is unlikely that the new executive order will be implemented without intense scrutiny by the judicial branch of government. Multiple legal challenges could be made against the revised order in the coming days. The revision could ultimately face a similar fate as the original order; federal judges could call for another temporary restraining order before it is implemented on March 16, effectively preventing US authorities from enforcing the policy.