Trump’s Revised Refugee and Visa Order: A Quick and Dirty Analysis

By Benjamin Wittes
Monday, March 6, 2017, 4:14 PM

The New York Times is striking a note of befuddled agnosticism as to the tonal difference between the rollout of the original executive order on refugees and visas back in January and that of the revised one today:

Mr. Trump signed the first ban with great fanfare, in front of reporters, at the Pentagon. “We don’t want them here,” Mr. Trump said of Islamist terrorists. “We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas. We only want to admit those into our country who will support our country, and love deeply our people.”

This time, he signed the order in private. Administration officials offered no explanation for his decision to opt for a lower-key rollout.

I suppose it would be wrong for a newspaper to declare in a news story the reason for Trump’s uncharacteristic modesty, which is obvious on even a cursory reading of the order: The new order is an embarrassing admission of error. It is a capitulation on countless points, large and small, to the so-called judges to whose carping the President so vigorously objected. Beneath its petulant insistence on the propriety of everything done in the January 27 order, it is an admission of the indefensibility of that order in court. It’s a surrender—a surrender to internal executive processes, a surrender to the judiciary, even a surrender on certain key points to decency. As such, it at least partially defangs the earlier action in important respects. It’s not a surprise that for a macho guy like Trump, who positively reveled in the earlier version’s nastiness, being forced to back down in the face of judges, bureaucrats, and the hated press has not yielded a moment during which he wants to be in front of the cameras.

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To be sure, the new version of the executive order will have consequences—all of them bad. It will keep large numbers of people from six countries out of the United States for no good reason. It will delay resettlement of large numbers of refugees and prevent altogether resettlement in the United States of a smaller number of refugees. As with the earlier version of the executive order, the overwhelming majority of people affected by this one will not be terrorists or even people against whom there is whiff of suspicion. The overwhelming majority of those affected, rather, will be innocent victims of horrific violence and folks who just want to come to the United States for reasons of tourism or business. It’s terrible policy that will, I suspect, have implications almost as negative for counterterrorism effectiveness as it will for this country’s moral standing and self image.

But all that said, the changes from the original document are not merely cosmetic. This is an order that has clearly benefited from some careful lawyering and interagency vetting. And that process has produced important changes that specifically address many of the issues that drove the rush to the courts the first time around. These changes include, most importantly, certain categorical exemptions from the travel ban and the refugee freeze, and the injection of significant amounts of discretion that may reduce significantly the number of people impacted.

Consider first the foreigner who wishes to travel here who is a national of one of seven Muslim majority countries. Under the old order, such a person was categorically barred from entry—even if a green card holder (at least at first), even if already on a plane on the way here at the time the order was signed, even if he had worked as a translator for U.S. forces in Iraq, even she lived here and was merely visiting a sick relative abroad, even if the person was a dual national of a country not covered by the order. What’s more, there was essentially no discretion to waive the ban under the prior version. By contrast, under the current order, our traveler is not barred at all if she is:

  • Iraqi (the new order drops Iraq from its coverage);
  • Holding a valid visa at the time the order goes into effect, ten days from now;
  • A permanent resident of the U.S.;
  • A dual national with a non-covered country traveling on that country’s passport;
  • A person who has been previously granted asylum or refugee status who happens to be overseas; or
  • A person protected against removal or otherwise protected under the Convention Against Torture.

Even if the person is not a member of any of these categories and thus exempt from the ban, the new order gives consular officers or Customs and Border Protection (CBP) officials discretion to waive the ban “on a case-by-case basis” and issue a visa or permit entry anyway if the person “has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship” and that the person poses no threat. Examples of situations warranting a waiver are outlined in the order and include, but are not limited to:

  • Situations in which the person was previously admitted for work or study he or she wants to resume;
  • Situations in which the person was outside the United States at the time of the order but has significant contacts inside it;
  • Situations of significant business or professional obligations;
  • Situations involving visitation of a close family member who is a U.S. citizen or resident;
  • Situations involving young children or infants; and
  • Situations involving people employed by the United States or who have been of service to this country.

In other words, the ban on entry is a ban that applies except when it doesn’t. And given that a lot of discretion appears to reside in consular officers, the fact that more than a thousand State Department officials signed a recent dissent cable objecting to the earlier version suggestions that discretion may be exercised more, rather than less, frequently.

The relaxation relative to refugees is less dramatic. Under the previous version, someone planning to come here as a refugee was simply out of luck—at least for 120 days. If that person were Syrian, she was out of luck entirely. The new order, however, clarifies that the ban “shall not apply to refugees who, before the effective date of this order, have been formally scheduled for transit by the Department of State”—something apparently designed to prevent the heartbreaking scenes in which refugees scheduled for travel to the United States were suddenly returned to refugee camps.

The new order also does not single out Syrians for disparate treatment, nor does it favor religious minorities over their countrymen. In a fashion similar to the earlier version, it allows the State Department and DHS to jointly “admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States.” The order specifically identifies compliance with international agreements and preventing undue hardship as bases for the exercise of such discretion.

All of this will make the new order far more defensible in court than the old one was. For one thing, it’s going to be significantly harder to find plaintiffs with a cognizable injury. As this order will not cause people to be pulled off planes, or have their visas revoked, or suddenly be subject to detention at a port of entry, the universe of people to whose aid a reasonable court would leap will be far smaller than the first time around. Indeed, two new Department of Justice filings alerting the U.S. District Courts for the Western District of Washington and the District of Columbia to the issuance of the new order both emphasize, in the same language, that “the New Executive Order does not present a need for emergency litigation.” The government may well be right on that point.

People don’t, generally speaking, have an affirmative right to have a visa issued to them. And the order, in short, amounts to a policy of refusing, in most though not all circumstances and except when the policy gets waived, to issue new visas to people from particular countries. That’s gross, in my opinion, but it’s a lot easier to defend in court than a policy that pulls permanent residents off of airplanes.

Moreover, though I continue to believe that the true motivation behind this order is nothing more or less than invidious discrimination—that the right way to understand it is as the closest thing to the Muslim Ban that Trump has been able to effectuate since taking office—the order does begin with a significant set of factual findings which constitute some kind of administrative record to which a court will owe deference. This is not an accident. The absence of any kind of record was one of several Achilles heels of the last order, and this one makes a point of not falling into that trap again. So even when someone gets into court to challenge it—and I don’t doubt that someone will find a way—we will not see a situation in which Justice Department lawyers have literally no facts to point to in defense of the order. It may still be an uphill climb, given the history and the very weak factual basis for the order, but the slope will no longer be nearly vertical.

Finally, the order has plainly benefited from a great deal of precisely the sort of interagency vetting the first one so nakedly lacked. One comical example of lawyering that took place this time that didn’t take place the last time shows up in Sec. 15, entitled “Severability.” It is a mark of how bad the vetting of the previous order was that nobody thought to include a severability provision so that if a judge struck down one section, no others fell with it. The new version, by contrast, says that “if any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby.” There are many other less amusing lawyerly footprints.

My broad point here is that we shouldn’t expect this time a race to the courts by huge numbers of plaintiffs leading to a sudden burst of restraining orders springing up all over the country. This version of the executive order is going to do less damage, but it’s going to do it more quietly and in a fashion that will be harder to stop.

To be sure, there’s a gestalt litigation question here: whether the improper motivations behind this entire project of banning entry from certain countries, motivations announced repeatedly by Trump himself and his campaign and administration surrogates, have injured his litigation posture so indelibly that courts will continue to throw roadblocks in the way. But I suspect that at some point—assuming, no doubt generously, that Trump can manage to shut up—the courts will have to act on the basis of the administrative record without consulting the atmosphere overmuch. If and when they do that, Trump seems to me likely to prevail on much of what he is trying to do here.

But that only raises the question of what he really has accomplished with this order. And here I return to the idea that this order is more of a surrender than a retrenchment on defensible grounds. It amounts, after all, not to a Muslim Ban, not to a travel ban, not even to a real pause in admissions. It amounts, rather, to a pause in admissions except with respect to the large number of people to whom it doesn’t apply, and except when a consular officer thinks the pause shouldn’t apply. Which is to say that Trump blinked.