Instead of seeking a rehearing on the question of whether the temporary restraining order against his travel ban should be lifted, President Trump plans to issue a revised executive order next week that addresses the due process concerns raised by the U.S. Court of Appeals for the 9th Circuit. In a brief filed yesterday, Acting Solicitor General Noel Francisco and Deputy Solicitor General Edwin Kneedler say Trump will "rescind the Order," which suspended the admission of refugees for 120 days and imposed a 90-day ban on travelers from seven Muslim-majority countries, and "replace it with a new, substantially revised Executive Order to eliminate what the [appeals court] panel erroneously thought were constitutional concerns." At his press conference yesterday, Trump said he will issue the revised order "toward the beginning or middle" of next week. Here are three changes he is likely to make:
1. The new order will explicitly exclude lawful permanent residents from the travel ban. The Supreme Court has said green-card holders have a right to due process if the government tries to stop them from re-entering the country after traveling abroad. The Trump administration concedes that point but says the travel ban should not be interpreted as covering lawful permanent residents (LPRs), even though officials at the White House and the Department of Homeland Security initially said it did. "The principal basis of the panel's decision was its conclusion that the Order applies to LPRs," Francisco and Kneedler say. "The Order is ambiguous in this respect and, at the time it was issued, was reasonably interpreted to encompass LPRs. However, it is also reasonably interpreted to exclude LPRs, and the White House Counsel's '[a]uthoritative guidance' confirms that narrower interpretation."
2. The new order probably will exclude people who do not have green cards but are already legally living in the United States. The Trump administration thinks the 9th Circuit was wrong to suggest that people from the seven banned countries who are legally working or studying in the U.S. on nonimmigrant visas have any due process rights when the government decides to revoke their visas. Francisco and Kneedler say "no court has adopted" that position, and the U.S. Court of Appeals for the 5th Circuit has rejected it. But the visas of students and scholars at state universities are at the center of the case before the 9th Circuit, which was brought by Washington and Minnesota, so it seems likely that Trump's revised order will leave them alone. "The Order's principal focus is on aliens who have never entered this country and have no connection to it," Francisco and Kneedler say. "The Supreme Court 'has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.'" It sounds like Trump will narrow the order so that its scope is defined by this "principal focus."
3. The new order will clarify that it has no impact on asylum applications. The 9th Circuit noted that refugees have a statutory right to seek asylum once they have arrived in the United States, meaning they have potential due process claims if they are summarily ejected from the country. Francisco and Kneedler say the 120-day ban on refugees "does not address the existing statutes or regulations for aliens who are physically present or arriving in the United States and are seeking asylum or similar protection."
In declining to override the TRO against Trump's order, the 9th Circuit also said the travel ban raises due process concerns insofar as it applies to foreign nationals "who have a relationship with a U.S. resident or an institution that might have rights of its own to assert." The Supreme Court has neither accepted such third-party claims nor definitively ruled them out. In Kerry v. Din, a 2015 case involving a U.S. citizen whose Afghan husband was denied an immigration visa, three justices said she had no due process right to challenge that decision, two said that even if she did she had already received due process, and four agreed that her due process rights had been violated.
Francisco and Kneedler say Din proves the 9th Circuit "is wrong" to think LPRs or citizens could make due process claims in connection with aliens (such as employees or relatives) they have an interest in seeing admitted to the United States. It seems to me that Din does not resolve the issue either way. In any case, it is hard to see how Trump could address the 9th Circuit's concern on this score without abandoning the travel ban, the very nature of which is to exclude people based on their country of origin, without regard to individual circumstances such as relationships with people in the U.S. In fact, Francisco and Kneedler argue that a blanket ban is immune from a due process challenge precisely because it "reflects a 'general determination' rather than one resting on 'individual grounds.'"
The order does allow "case-by-case" waivers "in the national interest," which could be used, for example, to let universities and other employers hire people from the banned countries. Perhaps the revised order will flesh out this provision by offering examples of which visitors may qualify.
"With the scope of the Order properly understood," Francisco and Kneedler say, "the overwhelming majority of its applications give rise to no due process concerns whatsoever." That is true only if you assume the admittedly "ambiguous" travel ban does not cover LPRs, who accounted for most of the people affected by Trump's order as it was originally interpreted.
Based on green cards issued during the last decade, there could be as many as half a million LPRs from the seven banned countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). By comparison, 85,000 refugees were admitted to the United States in fiscal year 2016; the Obama adminstration thought 110,000 should be admitted this fiscal year, and Trump's order reduces the cap to 50,000. Visitors from the seven banned countries with nonimmigrant visas (including tourists, business travelers, students, and temporary workers) totaled 86,000 in fiscal year 2015. There were also something like 26,000 new arrivals with immigrant visas. So even if half the people who received green cards in the last 10 years subsequently became citizens, LPRs would still outnumber all of the other people covered by the order.
At yesterday's press conference, Trump claimed "we had a very smooth rollout of the travel ban," "the rollout was perfect," and judicial interference was "the only thing that was wrong with the travel ban." Many Republicans, including members of Congress who think the vetting of visitors should be improved, disagree, and their main concern was the uncertainty about whether LPRs could return to their homes after traveling abroad. Trump's failure to foresee that problem shows how little thought he put into an order that gratuitously upset the plans and expectations of thousands of innocent people.