On Travel Order, Trump Will Rescind and Replace

by Andrew C. McCarthy

The Justice Department has informed the U.S. Court of Appeals for the Ninth Circuit that President Trump intends to rescind the executive order that placed substantial restrictions on alien travel to the United States. The order will be “replace[d] . . . with a new, substantially revised executive order.”

According to the Wall Street Journal, the Justice Department disclosed the administration’s plans in a submission that is intended to end litigation in the Ninth Circuit regarding the original executive order. That order, which we’ve extensively covered at National Review, placed a temporary ban on entry into the U.S. by refugees and by aliens from seven countries (Iran, Iraq, Syria, Libya, Yemen, Somalia, and Sudan) that were previously cited under an Obama-era statute due to terrorism concerns. The order was suspended by Seattle federal district judge James Robart; the suspension was subsequently upheld by a three-judge panel of the Ninth Circuit.

There were lingering questions about whether the administration would seek a review of the panel ruling by an en banc tribunal (which, because the Ninth Circuit is so large, would have involved 11 of the Circuit’s 28 active judges, rather than all active judges, as is done in other circuits). There was also a slim possibility that the administration would appeal to the Supreme Court. Today’s Justice Department submission should end the case, at least as far as the original executive order is concerned.

Presumably, the administration’s decision to rescind the executive order will also end the litigation in the district court in Seattle. There, Judge Robart was poised to consider whether the temporary restraining order he had issued should be followed with a preliminary injunction. Rescission of the order would leave nothing to enjoin.

The Justice Department’s submission contends that the Ninth Circuit panel’s decision “erroneously” concluded that the original order contained “constitutional errors.” It predicted that President Trump’s new order would be drafted in a manner that “eliminated” these judicial errors – which presumably means it will refashion the directive to avoid issues that the court found problematic.

Nevertheless, it seems unlikely that the president could issue a directive that would impose meaningful restrictions on alien entry yet sidestep the objections raised by the panel and the district judge. In any event, any new executive order is certain to face immediate challenges in the federal district courts, as the first one did.

It will be interesting to see whether the successor order calls for immediate implementation or announces a new policy to take effect after some notice period. The immediate implementation of the original order (issued on a Friday) resulted in chaos at the airports as aliens with lawfully issued visas were prevented from entering the United States. Coupled with the order’s questionable application to lawful permanent resident aliens whose travel involved one or more of the seven cited countries, the implementation created hardships that virtually guaranteed tough sledding for the executive order in the courts.

I would expect the next order to focus more on vetting procedures than categorical bans. To repeat, the original executive order was never meant to be permanent. It was a temporary measure on the path to a hoped-for system of improved screening. As I’ve been urging, getting the vetting right is critical. It is also, of course, bound to be controversial.

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