Courts not exactly waiting for new immigration ban order

There have been numerous reports that President Trump’s new executive order on immigration might be released as soon as today. But two courts involved in the controversy have quietly moved on proceedings related to the original order.

On Friday, Federal judge James Robart gave Justice Department attorneys an additional two weeks to prepare arguments about allowing (or disallowing) class-action lawsuits related to the original January 27 order, which temporarily banned immigration from seven Middle Eastern nations. (The case is different that the case that led to Robart’s nationwide injunction against the order.)

Last Monday, the Ninth Circuit Appeals Court also said it will ask the government to file briefs, despite a Justice Department request to put appeals proceedings on hold pending the new executive order. The Virginia-based federal court of Judge Leonie Brinkema also has an injunction in place against the current executive order.

Little information had been forthcoming about the new executive order over the weekend and if the Justice Department will try to defend the old order in court as it implements the new order.

On Monday, reports from Reuters and NBC News, sourced to White House officials, said that Iraq would be removed from the immigration-ban list in the new executive order. The temporary ban on refugees from all nations would remain in place. The 90-day ban on immigrant travel from Iran, Libya, Syria, Somalia, Sudan, and Yemen would also remain in place, but it won’t be implemented immediately. Also, certainly classes of immigrants and all green-card holders would be exempt from bans.

The original executive order directed federal agencies to issue a 90-day suspension of entry into the United States for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order also barred entry of all refugees into the United States for 120 days, and it barred Syrian refugees indefinitely.

Several weeks ago, the Associated Press reported that the initial new order draft proposed that lawful permanent residents, or green card holders, would be exempt from the executive order, as well as dual citizens. There were also reports the order would drop a provision that allows government officials to allow exemptions for “religious minorities” in countries placed on the temporary immigration ban list.

Since then, a brief draft Department of Homeland Security report, first published by the Associated Press, analyzed publicly available Justice Department information and concluded that country of origin “is unlikely to be a reliable indicator of potential terrorist activity.” (The Wall Street Journal later reported that administration officials believed the DHS analysis didn’t include other research that supported the seven-nation ban.)

Last week, Constitution Daily Supreme Court correspondent Lyle Denniston explained how the Justice Department could find itself defending the old and new orders on several fronts.

“It now appears almost a certainty that a new version of the Mideast immigration order will face as strong a court challenge as the original did. That is due partly to the perception of the challengers that any new version will be just as vulnerable legally, because the whole idea originated in Donald Trump’s campaign commitment to a ‘Muslim ban,’ barring immigrants based on their religion,” Denniston said.

Denniston said the new order’s impact on pending cases “could lead to an intensifying legal battle – on two fronts, not one – that could bring continued uncertainty about who is being banned from the country, and who is not.”

Legal experts fully expect the parties who sued the Trump administration in those jurisdictions will keep arguing that the orders are bans specifically aimed at Muslims, which would violate the First Amendment’s Establishment Clause. The government’s lawyers have countered those arguments in various ways, arguing that immigration power lies in the hands of Congress and the President, and not the courts, and that the Immigration and Naturalization Act clearly gives the President the ability to restrict immigration as a national security measure.