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Bad prospects for opponents of Trump's new travel ban

President Donald Trump's new travel ban for six majority-Muslim countries will go into effect on March 16. Many US states plan to file lawsuits against the revised ban but they probably will not win in the short term.

Critics all agree that the new, three-month travel ban starting on Thursday for citizens of Syria, Libya, Sudan, Yemen, Somalia and Iran can in essence be viewed as discriminatory against Muslims - or it is at least the first step towards discrimination.

That is one of the reasons why several US states filed lawsuits against Trump's original executive order and were successful in halting its implementation. A number of federal district courts issued restraining orders for the directive issued on January 27 by the freshly-inaugurated president. In February, an appeals court ruled that the restraining orders could be applied to Trump's travel ban.

Washington State leads the way

Trump responded by issuing a new, albeit less comprehensive order.  A number of Democrat-led states intend to file lawsuits against this executive order as well. Washington State is leading the charge against the second order, as it did after the first order in January. Minnesota, New York, Maryland, Massachusetts, Oregon and California support Washington's lawsuit. The state of Hawaii has filed its own lawsuit.

USA Seattle Generalstaatsanwalt Bob Ferguson (picture-alliance/AP Photo/T.S. Warren)

Washington State Attorney General Bob Ferguson said he'd carefully examine the new executive order

However, this time will be much more difficult to legally stop the ban - at least with regard to potential restraining orders. It is much more likely that the legality of the order will be decided on in a trial and that may take some time. The government has learned from the mistakes it made in January and now - at least formally - has written a legally watertight order.

Learning from mistakes

Soon after the exhilaration of the inauguration ceremony on January 27, Trump and his clique of nationalists in the White House who view radical Islam as the main US enemy tried to find facts overnight to support their ideas. The president's original executive order was issued without consulting experts from the Departments of State, Justice and Homeland Security - probably to prevent information leaks to the public. The order took effect immediately, without allowing border protection authorities time to prepare. This resulted in chaos at airports, stranded passengers, handcuffed children and elderly women, tears, anger and mass demonstrations. Then there were the court defeats. It was a public relations disaster for the new administration.

USA Trump signiert Durchführungsbeschluss zum Einreiseverbot (Reuters/C. Barria)

Trump signed the new executive order implementing the travel ban

In its second attempt, the government has taken more time in every respect. Experts and lawyers pored over the draft and Congress was involved. There are 10 days between the publication of the order and March 16, the day it is scheduled to take effect. Now border protection authorities and travelers have time to prepare for the new regulations. This time around, judges will not have to act urgently as they did last time when travelers were detained at American airports or faced the threat of having to return at any moment. Thus, there will be no need for temporary restraining orders.

A ban with many exceptions

Green card holders, meaning people who have permanent work or residency permits for the US, initially got caught in the chaos the first time but they are now explicitly excluded from the new ban. Travelers from the affected countries who already hold a valid visa may continue to enter the country. Anyone who has dual citizenship with the US, including EU member states or one of the affected six countries, will still be able to enter the US. 

Recognized refugees who have already received permission to move to the US are also exempt from the ban. The prioritization of Christian refugees, which was criticized as being openly discriminatory, was left out this time.

Now, the only travelers affected are ones who have not been accepted as refugees in the US or do not have a valid visa and who must now wait at least three to four months longer than expected for a decision.

No right to a visa

This will make it tough for opponents of the president's travel policies to prove that the regulations violate the rights of American citizens and institutions or people who have legal residency permits. It means that foreign nationals are not entitled to a visa for the US or prompt recognition and settlement as refugees.

Trump Reiseverbot New York (picture alliance/AP Images/A. F. Yuan)

Many Muslim travelers will soon be barred from entering the US

Former New York City mayor Rudy Giuliani, known for his law and order policies and for being one of Trump's earliest supporters, spilled the beans after the election campaign. In January, Giuliani talked to Fox News about a conversation with Trump. Giuliani said, "He called me up, he said, 'put a commission together, show me the right way to do it legally.' I put a commission together with Judge [Michael] Mukasey, with Congressman [Michael] McCaul, [Congressman] Pete King, a whole group of other very expert lawyers on this and what we focused on - instead of religion - danger."

Trump's people will avoid mistakes this time

The question remains whether such revealing information can legally prove that the president is intentionally discriminating against a religion. Unlike in January, the government has made the effort to justify in detail the need for an entry ban for the affected six countries based on an evaluation of existing security deficits. This will make it more difficult for applicants to prove that the White House is acting beyond its power. The Constitution and a law passed by Congress in 1952 allow the president a great deal of leeway in immigration matters, especially with regard to the nation's security.

 New York Demonstration nach Trump-Dekret (picture alliance/Zuma/A. Lohr-Jones)

There were protests across the US against Trump's new travel ban

The more the government can provide rational reasons for its decisions, the less judges will be inclined to question the government's security policies. It is not the judiciary's responsibility to do so; the judiciary only ensures that laws and fundamental rights are not violated. In response to the lawsuits against Trump's first directive, government lawyers were quite arrogant in their view that the president's decisions should not be questioned. Trump's people will avoid such a mistake this time.

Less arrogance - less disorderliness

The first executive order was so slapdash that a severability clause was simply forgotten. This is a standard element in any contract, which means an invalid part of a contract, or in this case an executive order, does not render the rest of the order null and void. This time, the clause was included. Now, even if individual parts of the directive are not valid or legal, the rest of it will still remain in effect.

That is probably all Trump wants at the moment. In his election campaign, he promised to protect Americans from radical-Islamist terrorism with all possible means. Now, he wants to deliver on his promise, even if it is only on paper, and even though the current draft is far removed from what he had vowed in his election campaign or even back in January.

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