Trump’s Revised Refugee Executive Order Should Withstand Court Challenge – but Will It?

By Joe Guzzardi
March 7, 2017
 
The fine print in President Donald Trump’s revised executive order does more than pause travel from Muslim-majority Middle Eastern nations. The order includes an effort to raise public awareness about the potential danger inadequately vetted refugees pose, an important threat to the homeland that the media often downplays or ignores.
 
As has been widely anticipated, on Monday President Trump signed a more conservative version of his original executive order. The new order, which supersedes the first, removes Iraq from the pause list, and bars the remaining six countries, all terrorism hotspots – Sudan, Syria, Iran, Libya, Somalia and Yemen – from entering the U.S. for 90 days, effective midnight March 16. Four of the six – Iran, Libya, Somalia and Sudan – refuse to repatriate their criminal aliens. Syrian resettlement is no longer permanently banned, but refugee resettlement will be delayed for 120 days, and capped at 50,000 for FY 2017. Naturalized citizens and green card holders are allowed to travel freely into the U.S.
 
From the first order, improvements that remain in the second include the long overdue completion of the biometric entry-exit system to track foreign visitors and reduce visa overstays. Illogically, the Bush and Obama administrations have blocked biometric entry-exit since 9/11. The risky Visa Waiver Program will now require foreign nationals hoping to obtain a nonimmigrant visa to participate in face-to-face interviews instead of applying online.
 
During the 90-day pause, the Department of Homeland Security will perform an extensive, country-by-country review of the information provided to the U.S. during refugee screenings. The six countries will have 50 days to comply with federal government requests for better or more detailed information.
 
Department of Homeland Security Secretary John Kelly summed up the executive order: “This is a temporary suspension of nationals from six countries that are either failed states at this point or state sponsors of terror.” Secretary of State Rex Tillerson added that the new order, while not infallible, will improve vetting and contribute to keeping terrorists out of the U.S. The executive order was drafted with input from DHS, State and the Justice departments.
 
Mostly unnoticed in the Executive Order is a section which will require the federal government to publicly release information on refugee or visa holder terrorism-related crimes. DHS Secretary Kelly will publish his first report 180 days after the executive order goes into effect, and it will include honor killing statistics. In September 2016, then-Alabama Senator Jeff Sessions, now Attorney General, referred to a Justice Department report which found that each year between 23 and 27 horrific honor killings occur in the U.S., 91 percent of them because the family considered the victim “too westernized.”
 
With many of the controversial portions of the original removed or softened, the legal case for preventing President Trump’s order to take effect is diminished. Nevertheless, a court challenge is certain, and refugee advocates may find a single judge to object. President Trump’s critics point to the 120-day refugee resettlement ban as the most vulnerable provision. But Temple University law professor Peter Spiro offered an encouraging analysis. In the immigration system, said Spiro, the president has broad authority, and his “authority is at its broadest with respect to noncitizens who have never entered the U.S.”
 
Another intense immigration battle is underway, and this time legal experts predict that President Trump will prevail.
 

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A Californians for Population Stabilization Senior Writing Fellow, Joe’s email is [email protected]. Find him on Twitter @joeguzzardi19.