With Hawaii poised to file the first challenge to President Donald Trump’s new immigration ban, issued in an executive order on Monday, legal experts said key changes to the previous version make it more likely to stand up in court.
"This new order is more likely to survive judicial review,” Kermit Roosevelt, a constitutional law professor at University of Pennsylvania, told NBC News.
There are over two dozen lawsuits still pending against the original ban, and Hawaii announced late Tuesday that it planned to file suit against the new ban on Wednesday. The pending lawsuits against the original ban press more than ten different arguments for why Trump’s policy could be illegal.
Some arguments could lead courts to narrow the ban’s application, like the claim that the ban hurts people with valid visas in violation of federal law.
Others could lead a judge to overturn the entire ban, like the claim that the true policy is religious discrimination, a potential constitutional violation.
The new order, however, retracts several provisions that had drawn legal fire.
A Narrower Ban
The executive order no longer bars entry of people who had legal visas or green cards, nor those protected under an international torture treaty, and it no longer favors “minority” religions facing persecution in their home countries — a rule that opponents attacked as a preference for Christians in the Middle East.
“It is a much harder challenge for opponents of the order to make now, than it was originally," constitutional scholar Robert Sedler said, citing several of those changes.
Despite some aggressive rhetoric from the Trump administration, Sedler said the new order revealed a process that actually relied on professionals within the federal government.
“It is the difference between an order that was adopted by careful advice of lawyers and one that wasn’t,” Sedler, a professor at Wayne State University in Detroit, said.
Fewer People Can Challenge the Ban
By narrowing its scope, the order also narrows the number of people who can get before a judge to challenge it.
“It reduces the number of future litigants,” Cornell immigration professor Stephen Yale-Loehr said.
Most people impacted by the new order are foreigners outside the U.S. That may limit the standing and due process arguments of challengers, because the Supreme Court has held that non-citizens outside the U.S. have few rights to access American courts. The government, however, does have more obligations to non-citizens inside the U.S.
Given the broad ban on people from six different countries, Americans may argue that they have standing to sue on behalf of people in those countries.
In 1972, the Supreme Court held that Americans may sometimes press the immigration cases of foreigners.
An American professor sued on behalf of a Belgian writer, accused of communism, whom the professor wanted to include in an academic conference. The supreme court heard the case, but ultimately supported denying the visa.
More recent rulings on the legal standing of foreigners, however, could favor the Trump administration.
In 2015, the Supreme Court effectively declined to review a visa denial of an Afghan national, suspected of terrorism brought by his wife, a naturalized American citizen.
The 5-4 decision was written by the late Justice Antonin Scalia. In the current composition of the current court, a similar case would be likely to deadlock 4-4.
Once a Muslim Ban, Always a Muslim Ban?
With so many legal claims narrowed, any new lawsuits against the order are more likely to claim that it targets Muslims based on their religion.
The new order does not discriminate against Muslims or include text focusing on religion at all.
That would force potential challengers to focus on the order’s history and motivations, not what it says on its face.
“I’m not sure that there’s anything that the new travel ban can do to erase the historical record of how we got to where we are today,” University of North Carolina Law Professor Catherine Kim said.
That record is unusually stark — as a candidate, Trump pledged to ban immigrants based on their religion. As a constitutional matter, a religious test for immigration would be equally suspect had Trump proposed it for Jews, Christians or Catholics.
In court, the Trump administration has argued that Trump’s campaign statements are not policy and judges should look to what the ban does.
Even judges who were skeptical of the ban, like U.S. District Judge James Robart, have given support to that distinction. Political rhetoric on the campaign trail may not doom the ban. But other evidence of discrimination could.
After the election, Trump adviser Rudolph Giuliani told Fox News that Trump wanted a “Muslim ban” and asked him to work with people to show him “the right way to do it legally.” That statement haunted the Trump administration in several cases.
If lawsuits against the ban proceed to trial, challengers could seek discovery and witness interviews to try to show other ways the order's goal was to target Muslims.
One attorney working on a challenge, speaking anonymously to discuss litigation strategy, said that even though Trump revoked the first ban it could still hurt him in court. Challengers will try to introduce the first ban and its language about minority religions as evidence of Trump’s intent, the lawyer said, even if the administration wants to narrow the debate to a more polished revised order.
Professor Kim, who studies immigration and citizenship law, said that it is still an open secret Trump may struggle to defend.
“It started with the campaign saying, ‘We want to ban Muslims,’” she said, “and how do we do this legally?”