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President Donald Trump confirmed on Friday that he is mulling issuing a new executive order on immigration after an appeals court refused to reinstate his hotly-debated executive order banning nationals from seven predominantly Muslim countries.
As a matter of law, there are parts of the order that could be revised in a way that could help the administration prevail in court.
Could a new executive order tackle all the open legal issues and end the legal challenges?
White House legal staff began crafting a new potential order a few days before the Ninth U.S. Circuit Court of Appealsdenied the White House's bid to lift a temporary restraining order on Trump's plan to bar nationals from seven majority Muslim countries from entering the country for 90 days, a senior administration official told NBC.
A new executive order could address several of the outstanding issues.
However, that approach would eliminate some of the challengers' arguments, while maintaining the thrust of the policy in the order.
How would a new executive order do that?
There are three options that would be relatively easy to draft.
A new executive order could clarify the ban does not apply to legal residents with green cards.
That is now the White House policy, but only through a memo from Don McGahn, the White House counsel.
The Ninth Circuit came down hard on that approach, noting if the president wants to change a binding order he has to do it himself.
“The White House counsel is not the President,” the judges wrote, and he is not “in the chain of command.” The president could do that, anytime, which would end that legal issue and not sacrifice anything in policy terms.
A new executive order could provide specific due process protections — like notice and hearings — for any people affected who have been lawfully authorized to enter the U.S.
This tweak would only cover a tiny minority of people impacted by the order since most are foreigners who have never been admitted. But it would address the Ninth Circuit’s concern that the order appears to violate those constitutional rights.
“Persons” within the U.S. have rights, even if they are undocumented or unlawful, according to a 2001 Supreme Court ruling, Zadvydas v Davis.
An executive order could refine references to religion to reduce the argument that it favors particular religions.
The Ninth Circuit does not reach any conclusion on religion, stating only that "questions" are raised about whether the order amounts to a Muslim ban. The order prioritizes refugee claims from people who are the “minority religion” of their home countries.
Critics argue that language would favor Christians over Muslims in many countries. That is true, but basically unfair to the Trump administration.
U.S. asylum policy has long recognized "persecution" as a factor and that occurs more in the minority than majority. This part of the executive order refers potentially to all global refugee claims, not simply those from Iran, Sudan, Libya, Somalia, Syria, Iraq and Yemen, so the minority religion in question could change.
President Trump’s public statements about favoring Christians did not help the legal case, and those statements could be reviewed by judges in the merits case.
The references to religion could be better drafted to show or emphasize that they need not operate as a preference for a given religion, which would reduce some legal concern that the text of the order could discriminate.
Challengers would retain other admissible arguments that the order is still a “Muslim ban." Former New York Mayor Rudy Giuliani's comments to that effect were invoked in the Seattle district court hearing. However, this is another relatively easy item to refine in drafting if the White House wants to.
The big question is whether the White House will decide to refine the order as it continues to wage a defense in court.