President Donald Trump opened himself to what could be a new wave of legal challenges with a revised travel ban that adds three countries to the list of nations facing restrictions on entering the U.S.
Two groups that are challenging the earlier version of the policy at the Supreme Court said they still see the restrictions as targeting Muslims. That’s even though the new policy adds two countries with few Muslims, banning everyone from North Korea and some government officials from Venezuela.
“The fact that Trump has added North Korea — with few visitors to the U.S. — and a few government officials from Venezuela doesn’t obfuscate the real fact that the administration’s order is still a Muslim ban,” Anthony Romero, executive director of the American Civil Liberties Union, said in a statement.
During the presidential campaign, Trump explicitly called for a ban on Muslims entering the country. He later said he would focus on “territories” and now says the policy doesn’t target a particular religion.
The new travel policy, which comes 16 days before the Supreme Court is scheduled to hear arguments on the earlier ban, aims to bolster Trump’s legal case by tailoring the restrictions on a country-by-country basis and laying out reasons particular nations were included. The revised policy comes after the Department of Homeland Security sent Trump a classified report assessing which countries don’t provide adequate information about their traveling citizens.
‘Tough and Tailored’
“I must act to protect the security and interests of the United States and its people,” Trump wrote in Sunday’s proclamation.
Acting Homeland Security Secretary Elaine Duke said in a statement that the restrictions “are tough and tailored, and they send a message to foreign governments that they must work with us to enhance security.”
The Department of Homeland Security will have the authority to add or remove travel restrictions on countries as conditions change, a senior administration official said.
One mostly Muslim country, Sudan, was dropped from the previous list and another, Chad, was added. The five countries that remain on the list are Iran, Libya, Syria, Yemen and Somalia.
“They simply added three additional countries,” said Becca Heller, director of the International Refugee Assistance Project, which is challenging the policy at the Supreme Court. “Of those countries, Chad is majority Muslim, North Korea is literally threatening to nuke us, and the restrictions on Venezuela only affect the officials of the administration of President Maduro, who recently referred to Trump as ‘Hitler.’”
Where and when the next legal showdown will take place isn’t clear. The Supreme Court is scheduled to hear arguments on Oct. 10 on Trump’s earlier ban, the core of which was scheduled to expire Sunday. The Justice Department late Sunday sent the high court a letter suggesting that both sides file briefs by Oct. 5 discussing the impact of the new policy.
The high court could broaden its review to consider the revised travel ban as part of that case. But the court could also let federal trial judges take first look at the revised policy. The court could return the entire dispute to the trial court level or alternatively dismiss the case over the temporary ban and leave it to the challengers to file new lawsuits.
“I would think the most likely outcome is brand new litigation,” Georgetown University law professor Marty Lederman said earlier this week.
The justices were already grappling with questions about whether the case before them would be legally moot before they could rule.
‘Bona Fide’ Relationship
The high court struck a compromise in June, when it let part of the travel ban take effect. Under that order the ban can’t be applied to those who have a “bona fide,” pre-existing relationship with a person or entity already in the country.
That order didn’t directly address the underlying legal issues, including politically explosive questions about presidential power and religious bias. Some lawyers say those are questions many justices might be content to postpone until a lower court considers the new proclamation in place of the earlier temporary policy.
“It’s hard to see how the court is going to have much appetite to reach the merits in the context of an avowedly temporary policy,” Kannon Shanmugam, a Washington appellate lawyer with Williams & Connelly, said earlier this week.