The Trump administration is left with two options to revive the President’s executive order banning U.S. entry to travelers from seven Muslim-majority “countries of concern” listed by the previous administration.
The order was challenged in multiple courts and, on Feb. 3, the District Court in Washington paused the order for the time period when the case is in progress. The administration appealed to the 9th Circuit Appeals Court, asking for the order to remain in effect during the course of the case, but was denied on Feb. 9.
Now, President Donald Trump has two choices: He can appeal to the Supreme Court, or issue a new narrower and more specific order that would be able to withstand legal challenges. Technically, he has a third option: Appeal to the whole 9th Circuit judge panel. But since the 9th Circuit is considered liberal-leaning, this option is unlikely.
Trump issued the order on Jan. 27, banning entry for citizens of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. It also suspends the intake of refugees for 120 days and Syrian refugees indefinitely. The purpose was to give the government time to figure out stricter screening criteria, as the existing criteria were ineffective for screening immigrants from countries with unstable or uncooperative governments.
Trump said the ban needed to be issued abruptly, otherwise it would have given hostiles time to sneak in.
But the extemporaneousness of the order caused immigration staff to put it in practice on vague guidance. About 100 travelers in flight were initially denied entry and some of them were turned away. About 6,000 people had their visas cancelled.
Courts usually leave immigration matters to the government and rarely step in.
The legal challenge to the order argues that it includes green card holders, who have a right to a hearing before they can be denied entry to the country—the order doesn’t allow for any such hearings.
But White House Counsel Don McGahn issued “authoritative guidance” on Feb. 1 excluding green card holders from the ban.
The 9th Circuit didn’t accept the “authoritative guidance” as sufficient, because it doesn’t carry the same power as an executive order.
The judges stated the right to a hearing may also apply to some foreigners who are in United States temporarily. To accommodate such a possibility, the administration suggested the court could protect from the ban “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That way, the rest of the order would remain in effect—no new visa would be issued, unless individually approved by the Homeland Security Secretary.
But the judges refused such option because there may be “potential claims regarding possible due process rights” of illegal aliens from the banned countries.
This is where the courts stand on shaky ground, according to constitutional law attorney David French. If Trump issues a new executive order that excludes green card holders and previously admitted aliens, he will have a much better chance to withstand legal challenges.
Otherwise, the government will need to appeal to the Supreme Court, and with only eight members, divided along partisan lines, Trump’s chances of winning that fight are slim.