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New travel ban eases some legal questions but not all

Posted at 6:47 PM, Mar 06, 2017
and last updated 2017-03-07 08:08:25-05

President Donald Trump's revised travel ban eases some of the legal questions surrounding the previous order, but critics said it does not answer all of them, including accusations that the measure is a thinly veiled attempt to discriminate against Muslims.

Opponents promised to challenge the president again in court.

“Despite minor changes, the Administration’s new executive order is just as legally objectionable and morally reprehensible as the original," U.S. senator Ben Cardin said. 

The new, narrower ban announced Monday temporarily bars new visas for citizens of six predominantly Muslim countries one fewer than the original ban, with Iraq removed from the list. It also suspends the entire U.S. refugee program.

The measure applies only to refugees who are not already on their way to the United States and people seeking new visas. It removes language that gave priority to religious minorities. Critics said the language was designed to help Christians get into the U.S. and to exclude Muslims.

The changes will make the new executive order tougher to fight in court, but they "will not quell litigation or concerns," Stephen Yale-Loehr, an immigration law professor at Cornell University Law School, said in a written statement.

"U.S. relatives will still sue over the inability of their loved ones to join them in the United States," he said. "U.S. companies may sue because they cannot hire needed workers from the six countries. And U.S. universities will worry about the impact of the order on international students' willingness to attend college in the United States."

The American Civil Liberties Union promised "to move very quickly" to try to stop the order.

Top Republicans welcomed Trump's changes. Congressman Andy Harris released the following statement, 

"I applaud President Trump for doing everything he can to assure that immigrants from countries which are either state sponsors of terrorism, or where ISIS has significant presence, will be properly vetted before entry," Harris said. "This temporary pause in immigration from those six countries was long overdue - giving our law enforcement and Homeland Security officials adequate time to work to develop vetting measures that will protect us from terrorist infiltrators."

House Speaker Paul Ryan said the order "advances our shared goal of protecting the homeland."

Maryland representatives argued still that the revised order will harm American security interests more than help. 

"Following a series of defeats in court for his first un-American Muslim ban, President Trump is attempting to revise his unconstitutional policy," congressman Elijah Cummings said in a statement. "But the American people should not be fooled by the President’s second attempt: his policy still bans immigrants only from Muslim-majority countries, it still cruelly blocks refugees, it is still un-American, and it still will harm American national security interests more than help them.”

Cardin echoed Cummings,

“There is a real threat that this nation faces from terrorism, and our policy efforts must address that threat," he said. This order does not do that. Instead, it makes us less safe, damages our moral leadership, and strengthens the hand of those who would do us harm either through recruitment or self-radicalization."

A spokesman for the 9th U.S. Circuit Court of Appeals, which upheld a Seattle judge's restraining order in the Washington case, said the court was evaluating the new executive order's effect on the existing case. The Justice Department filed papers Monday in federal court in Seattle arguing that the restraining order should not block the new ban from taking effect as scheduled March 16.

Critics said the new order failed to address some other concerns, including the notion that the measure attempts to enact the Muslim ban Trump advocated during his campaign. Washington state, joined by Minnesota, argued that the order violated the First Amendment's separation of church and state.

The 9th Circuit's ruling did not deal with those arguments, but the court said it would evaluate them after further briefing. The states' claims "raise serious allegations and present significant constitutional questions," the judges wrote.

Larry E. Klayman, a founder of and lawyer for the conservative group Freedom Watch, supported the original ban when it was before the appellate court and described the new version as "quite modest."

"Right now, we're in a state of war with certain countries, and this is a reasonable approach to it," Klayman said.

Additionally, a question remained over whether the new ban conflicted with federal immigration law, said Jorge Baron, executive director of the Seattle-based Northwest Immigrant Rights Project. His organization filed a class-action complaint over the initial ban and said it would amend its arguments in light of the new one.

"Our immigration laws specifically say you cannot discriminate on basis of nationality in this process," Baron said. "The president can't rewrite the law by executive order."

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WMAR Staffer Kate Mills contributed to this report.