President Trump plans to issue a revised version of his temporary travel ban targeting majority-Muslim countries as early as Tuesday, with a likely focus on fewer people so it will survive legal challenges.
The new order, according to a draft obtained by the Associated Press, would focus on the same seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — but would only bar entry to those without a visa and who have never entered the United States before. Unlike the original order, people from those countries who already have permanent U.S. residency (green cards) or visas would not face any restrictions.
Trump's first attempt to institute the ban last month led to widespread chaos around the world, as foreigners with green cards and visas were detained at U.S. airports and barred from boarding U.S. flights. That executive order was blocked by several federal judges, who ruled it may have violated constitutional protections for legal immigrants.
Trump said last week that while he disagreed with the rulings from a federal judge in Seattle and the 9th U.S. Circuit Court of Appeals in San Francisco, his revised order would be "very much tailored" to those rulings.
The Jan. 27 order barred citizens of Iraq, Iran, Libya, Somalia, Sudan and Yemen for 90 days, all refugees for 120 days and Syrian citizens indefinitely. The revised order would not impose an indefinite ban on Syrians, according to the AP.
Trump said a temporary ban is necessary to give his agencies time to develop "extreme vetting" procedures from those terror-prone countries to ensure that terrorists don't enter the country.
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Legal experts said Trump's new approach will be more difficult to beat in court. "It definitely seems like he'd be on much stronger ground," said Andrew Hessick, a law professor at the University of North Carolina School of Law who co-signed a federal court brief arguing against Trump's executive order. "It's very hard to say there's a due process claim for people who are outside the country."
Still, attorneys who led the charge against Trump's first executive order remain confident they'll prevail in court again because the second version has the same "core problem."
"We do not think that religious discrimination will automatically be removed simply by tweaking the wording of the executive order," said Lee Gelernt, an ACLU attorney who won a stay of the order in New York. "We're certainly pleased if certain groups are exempted, like legal permanent residents and existing visa holders. But that will not cure all the legal defects."
By focusing a new executive order on foreigners who have never been in the U.S., the Trump administration also makes it difficult for anyone to even initiate a lawsuit.
Washington state and Minnesota won suits against the order because it limited the rights of foreign-born, legal residents living in those states and hurt state universities that have foreigners from those countries working as employees and paying tuition as students. If those people are allowed to travel freely under the new ban, Washington and Minnesota would have to find a new approach.
Even under the revised order, some legal experts say states could still argue that their residents and universities are illegally hurt. For example, a state university could say it cannot recruit students or faculty from Somalia. Or permanent residents from Yemen could say their rights to sponsor relatives living back home for a visa have been taken away without due process.
"With the right plaintiffs, there remains the possibility that the constitutional claim could be brought," said Robert Chang, a law professor at the Seattle University School of Law and executive director of the Fred T. Korematsu Center for Law and Equality.