by Michael Dorf
According to a story in The Hill on Wednesday, the White House has decided to wait until next week to release a revised Executive Order (EO) to (presumably) replace EO 13769, which has been stayed in the courts. Exactly what the new EO will say remains to be seen, although, according to White House Adviser Stephen Miller, apparently it will have magical properties.
As recounted in The Hill story, on Tuesday Miller told Fox News that there will be “mostly minor technical differences” between the new EO and EO 13769, even as the new EO will be "new and different." The minor technical differences will somehow be "fully responsive to the courts," which, it bears remembering, have found that the challenges to EO 13769 are likely to succeed on the merits because the flaws in EO 13769 are substantial, not merely technical. Miller, who has no legal training, believes the magical new EO will square the circle because, as he told The Hill in an email, "though any changes are of course very technical and legal in nature, the significance of the changes will be quite substantial."
Suffice it to say that I have my doubts, and not just because Miller's word salad is self-contradictory. As I explained in a recent column, if the new order has a disparate impact on Muslims--as it surely will if it maintains the seven-country ruse that underlies much of EO 13769--then it will almost certainly be tainted by the same history of discrimination that led Judge Brinkema to enjoin EO 13769.
Meanwhile, in all of the litigation and speculation about the new EO, it is easy to lose sight of the nominal justification for the Trump policy. Both Trump's original December 2015 call for a "total and complete shutdown of Muslims entering the United States" and EO 13769 claim that the travel restrictions are to be temporary measures designed to give the administration time to tighten vetting procedures. That fact leads to an obvious question: What steps, if any, have the president and his team taken to review existing vetting procedures and design new ones?
In addition to imposing travel restrictions, EO 13769 directs the Secretary of Homeland Security, the Secretary of State, and the Director of National Intelligence to conduct a number of investigations and to begin implementation of various additional screening measures (such as use of biometrics and additional interviews for visas). The EO contains various time limits for the review and for the receipt of information from targeted countries.
Section 3(c) of EO 13769 suspends entry into the country of nationals of the seven majority-Muslim countries for a period of 90 days, ostensibly to permit the relevant actors to conduct their review of existing screening procedures and begin to implement new ones. How that period interacts with the other time periods in EO 13769 is not entirely clear but also not very important if, as strongly hinted, the new EO supersedes EO 13769.
It is impossible to glean the likely content of the new EO from Miller's double-talk but other sources indicate that it will probably maintain its basic shape while applying to a smaller category of people, expressly exempting green card holders and probably some other current visa holders. If so, a crucial test of the validity of the order should be whether it resets the clock to zero. If so, that would be strong evidence of bad faith.
How so? Let's suppose that the administration issues the new EO on Monday of next week, which is 31 days after the issuance of EO 13769. There is nothing in the fact that EO 13769 has been on ice since Judge Robart's ruling that should have prevented the Departments of State and Homeland Security (or anyone else in the administration) from undertaking steps to review existing procedures. To be sure, Section 3(c) of EO 13769 says that the reason for the travel ban from the seven listed countries is "[t]o temporarily reduce investigative burdens on relevant agencies during the review period," but this is what in technical legal terms is called bullshit.
For one thing, the review to be conducted is at the high levels of the relevant departments, not by the line officers who do the screening for visas. And in any event, there is no burden on those line officers due to travel to the U.S. by people who already have visas.
Now maybe the new order will address this obvious deficiency by exempting current visa holders, but if the point is to free up the time of the screening officers, then it ought to exempt all visa holders, i.e., all people whose entry won't pose any sort of burden for the officers now being asked (supposedly) to do extra work by reviewing the efficacy of existing screening procedures. If any category of persons holding current visas is not exempted from a travel ban, that will be evidence that the justification of freeing up people's time is nonsense.
Indeed, the freeing-up-time justification was always nonsense, which is why it hasn't tended to come up in litigation. The government has instead tended to say that the seven-country list identifies areas of extra security risk and that therefore, people ought not to be allowed in from those countries until the screening procedures have been tightened. This also turns out to be false, as the government has pointedly declined to offer evidence, in camera or otherwise, of what security risks are posed by the people targeted by EO 13769, but even if it were taken to be true, it would not preclude the review of screening procedures while the travel ban is stayed.
This brings us back to the timing issue. If the government has actually been using the time that has elapsed since January 27 to review screening procedures, then any version of the new EO that corresponds to Section 3(c) of 13769 ought to last for no more than 90 days minus the time that has elapsed since then. If the new EO is issued on Monday of next week, say, that would be 59 days. Each additional passing day before the issuance of the new EO should reduce that figure by one day.
Of course, even the reduced length of the ban is arbitrarily high. Trump has been able to receive intelligence briefings since May of last year. During any of the intervening nine months did he or any of his advisors seek information relevant to tightening screening procedures? That question won't be answered publicly, I'm sure, but we will be able to infer from the content of the new EO whether it really bears any relation at all to improving screening procedures with impediments to entry by a collection of mostly Muslim foreign nationals as a mere unfortunate side effect or whether, instead, those impediments are the raison d'être of Muslim Ban 2.0, just as they were for Muslim ban 1.0.