Just two weeks ago, President Donald Trump was a man in a hurry — itching to move forward with a revised version of his travel ban executive order because, he said, the security of the nation depended on it.
But there’s still no sign of it.
With Trump’s initial order blocked by a federal judge, the president railed at the courts for rulings that were “so dangerous” they were allowing potential terrorists to pour into the country. Meanwhile, one week passed and then another, with no revision of the travel ban unveiled, and aides repeatedly promising it would come in the next few days.
Several factors are contributing to the delay, including Trump’s stated desire to “tailor” the new order to withstand inevitable legal challenges and an effort to consult in advance with agencies that will have to implement the new policy once it’s issued.
Former officials and immigration experts say that while they welcome the Trump White House’s more deliberative approach, the delay seems to undercut the president’s claims that it was important to rush the first one out because the nation was at risk.
“That runs totally counter to the messaging that surrounded this, that these are dangerous people — the ‘bad hombres’ thing,” said Doris Meissner, head of the Immigration and Naturalization Service under President Bill Clinton. “They are caught in their own mythology there.”
Litigation over the first version of his directive went forward Friday with a federal court in New York holding a hearing on efforts to identify travelers affected by the original order, which was suspended nationwide by a federal judge on Feb. 3.
At Friday’s hearing, the Justice Department agreed to work with the American Civil Liberties Union and other groups to compile a more complete list of people affected by the messy rollout of Trump’s first order in late January, which temporarily stopped citizens of seven Muslim-majority countries from entering the U.S. and suspended refugee resettlement programs altogether.
Under order from the federal district court in Brooklyn, the Justice Department has provided the ACLU and other litigants with a list of 746 affected travelers from the seven nations: Iran, Iraq, Syria, Sudan, Somalia, Libya and Yemen.
The ACLU argued that the tally was incomplete and cited 10 additional cases in which travelers were blocked from entering the U.S. in the day after the rollout of the order.
In response, the federal government agreed to work with the civil rights organization to identify additional cases. The Justice Department also said it would seek to determine who on the list had been admitted to the U.S., so the ACLU could seek retrieve those stranded abroad.
U.S. District Court Judge Carol Amon declined to rule on a motion by the ACLU to compel the government to return people from overseas who were affected by the ban, since the parties have been working together to resolve the issue.
“We are pleased with what happened today,” Lee Gelernt, a senior attorney at the ACLU, told Politico. “The government agreed in open court … that they would continue to cooperate and to facilitate the return of individuals who were removed under the existing executive order.”
A Justice Department attorney said they would assist the ACLU with the list and provide contact information but that “it will take some time to produce.”
Both parties agreed not to make the names on the list public, but it could eventually fuel a class-action lawsuit.
Also on Friday, the Justice Department filed a motion asking the San Francisco-based 9th Circuit Court of Appeals to put a hold on all proceedings surrounding the original travel ban in anticipation of a revised order. The government told the court that the president plans to replace the existing travel ban with “a new, substantially revised executive order.”
However, the DOJ didn’t offer a timetable for the new order’s release, beyond saying it would be in the “near future.”
The states of Washington and Minnesota, which sued to block the order, filed a reply arguing that hearings should proceed because the White House has indicated it will not rescind the original order when it issues the new one.
On Thursday, White House press secretary Sean Spicer defended the repeated delays and insisted that the revised travel ban directive is complete.
“The order is finalized,” Spicer said. “What we’re doing is in the implementation phase of working with the respective departments and agencies to make sure … it’s done in a manner that is flawless.” He added: “Not a question of delaying, it’s a matter of getting it right … What we want to do is make sure we are working through the departments and agencies so that any concerns or questions are entered on the front end but we are acting with the appropriate haste and diligence to make sure the order is done in an appropriate manner.”
Trump publicly claimed that the rollout of the initial order was “perfect,” but a federal judge said the directive unleashed “chaos” at the nation’s airports as customs officials’ struggled to figure out how to carry out the order and what to do with hundreds of travelers who arrived shortly after the order was signed.
Meissner said she thinks Homeland Security Secretary John Kelly is demanding time to make sure his personnel are prepared for the new order.
“Kelly took the fall for this failure to coordinate, saying it was his fault, which it wasn’t. Having done that once, one would imagine he doesn’t want to do that again and the Department of Homeland Security has a better understanding of what it needs and is insisting on lead time built into it,” said Meissner, now with the Migration Policy Institute.
The Justice Department also appears to be giving the order more rigorous review than the first time around, when the agency’s Office of Legal Counsel signed off on the memo’s “form and legality” but overlooked at least one drafting error and apparently failed to warn the White House that the directive would likely be promptly suspended by the courts.
Attorney General Jeff Sessions, who was sworn in earlier this month, is now also involved and in a position to influence the order and try to make it more defensible.
The revised Trump order is likely to come under fire on the same legal grounds that were used to assault the earlier directive: that it unfairly deprives individuals of their due process rights and that it was tainted by religious prejudice.
Former U.S. Citizenship and Immigration Services Chief Counsel Stephen Legomsky said he expects the new order to make some concessions and exceptions to undercut the constitutional due process complaints.
“Leaving out the legal permanent residents is a no-brainer. Beyond that, it gets iffy,” said Legomsky, a law professor at Washington University in St. Louis.
Legomsky said the more difficult problem for the government to escape is the impact of Trump’s campaign-trail comments about a “Muslim ban” and adviser Rudy Giuliani’s statements that the goal of the travel ban was to implement a version of the “Muslim ban” that would survive legal challenge.
“Those incriminating statements by Trump and Giuliani will always be part of the record. They can’t be erased,” Legomsky said.
The administration is also working to address another concern raised by judges: that the White House laid out no factual evidence to support the original travel ban, including its focus on the seven countries.
Trump administration officials are compiling proof of the threat posed by travelers from those countries, but the process has produced some dissenting views. A draft Department of Homeland Security intelligence report concluded that citizenship was “likely an unreliable indicator of terrorist threat to the U.S.”
The assessment, reported this week by CNN and The Associated Press, looked at U.S.-based individuals convicted of or killed in the process of a terrorist act inspired or done at the direction of a foreign terrorist organization. The review found the top countries the foreign-born perpetrators hailed from were Pakistan, Somalia, Bangladesh, Cuba, Ethiopia, Iraq and Uzbekistan. Only Somalia and Iraq are on the Trump travel ban list.
White House spokesman Michael Short said the DHS report was too narrowly focused to be reliable.
“The intel community is combining resources to put together a comprehensive report suing all available sources, driven by data and intelligence and not politics,” Short said.
A White House official who asked not to be named called the DHS report “thin” and said official believe its leaking was politically motivated.
How much weight judges will give to the broader intelligence review is not clear. It may not help the White House case that Spicer announced the revised order was “finalized,” but the intelligence review seems to still be underway.
A White House spokesman had no immediate comment on that sequence.
Even with the new intelligence assessment, the administration faces a daunting legal task at implementing the new order in the face of more than two dozen pending lawsuits and two injunctions currently in place against the previous one.
“The injunctions don’t just get lifted automatically. You have to ask,” said Jonathan Meyer, former deputy general counsel at the Department of Homeland Security. “They need to closely synchronize everything they do here.”
The current delay could be useful to the administration if it results in the travel ban issue arriving at the Supreme Court after Trump nominee Judge Neil Gorsuch is confirmed, something that could take place by mid-April.
“Absolutely, that is an issue,” said Meyer, now with law firm Sheppard Mullin. “The problem is the timings of the litigation process is a lot more difficult to predict than the timing of the confirmation process.”
Regardless of what changes the White House makes in version 2.0 of the travel ban order, courts are likely to view it in the context of what happened the first time.
“The damage done by issuing the faulty order in the first place is going to continue,” Meyer said. “I don’t see them completely escaping it no matter what they do.”