New Trump travel order will aim to circumvent legal challenges

REUTERS -- In formulating a new executive order limiting travel to the United States, President Donald Trump has promised to make the directive harder to fight successfully in court than the one he issued in January.

One way the administration will likely try to do that, legal experts say, is to shape the order more narrowly to undercut the opportunity for states and other opponents to sue by showing courts they have "standing," or the ability to argue the president's order causes them harm.

But legal experts said a new order, which a White House source said was likely to be announced on Wednesday, was unlikely to fully eliminate the ability of challengers to pursue legal actions.

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Protests erupt throughout US cities over Trump immigration ban
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Protests erupt throughout US cities over Trump immigration ban
Demonstrators gather in Copley Square for the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
An international traveler smiles as she walks past the protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Dallas/Fort Worth International Airport in Dallas, Texas, U.S. January 29, 2017. REUTERS/Laura Buckman
Demonstrators yell slogans during protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Los Angeles International Airport in Los Angeles, California, U.S., January 29, 2017. REUTERS/Ted Soqui
Sarah Ijaz joins the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
BOSTON - JANUARY 29: People hold signs as they march from Copley Square to the Mass. State House in Boston on Jan. 29, 2017, to protest President Donald Trump's executive order banning people from several predominantly Muslim countries from entering the country. (Photo by Jessica Rinaldi/The Boston Globe via Getty Images)
Muslim women pray during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" protesting U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
People gather to pray in baggage claim during a protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Dallas/Fort Worth International Airport in Dallas, Texas, U.S. January 29, 2017. REUTERS/Laura Buckman
Eight year-old Esma, an Irish-Moroccan-American, prays with other Muslim women during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" protesting U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Demonstrators spell out "# No Muslim Ban" during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Izzy Berdan (R) joins the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Muslim women pray during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" protesting U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Muslim women pray during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" protesting U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Demonstrators gather in Copley Square for the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
An activist holds a sign outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Activists gather outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Activists gather outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Activists gather outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Samah Mansur, from Egypt, takes part in the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Activists gather outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
People gather to protest against the travel ban imposed by U.S. President Donald Trump's executive order, at First Baptist Church in Dallas, Texas, U.S., January 29, 2017. REUTERS/Laura Buckman
BOSTON - JANUARY 29: People hold signs as they gather in Copley Square in Boston on Jan. 29, 2017, to protest President Donald Trump's executive order banning people from several predominantly Muslim countries from entering the country. (Photo by Jessica Rinaldi/The Boston Globe via Getty Images)
BOSTON - JANUARY 29: People gather in Copley Square in Boston on Jan. 29, 2017, to protest President Donald Trump's executive order banning people from several predominantly Muslim countries from entering the country. (Photo by Jessica Rinaldi/The Boston Globe via Getty Images)
UNITED STATES - JANUARY 29: Rep. Don Beyer, D-Va., speaks with an ACLU legal observer during the protest at Dulles International Airport in Virginia on Sunday, Jan. 29, 2017. Protests erupted at airports around the country following President Trump's executive order restricting travel from several Islamic countries. (Photo By Bill Clark/CQ Roll Call)
MIAMI, FL - JANUARY 29: A protester holds up a sign that reads, 'Banning Immigrants is UnAmerican!,' as she stands with others at the Miami International Airport against the executive order that President Donald Trump signed clamping down on refugee admissions and temporarily restricting travelers from seven predominantly Muslim countries on January 29, 2017 in Miami, Florida. Demonstrators gathered at airports across the country in protest of the order. (Photo by Joe Raedle/Getty Images)
MIAMI, FL - JANUARY 29: Protesters stand together at the Miami International Airport against the executive order that President Donald Trump signed clamping down on refugee admissions and temporarily restricting travelers from seven predominantly Muslim countries on January 29, 2017 in Miami, Florida. Demonstrators gathered at airports across the country in protest of the order. (Photo by Joe Raedle/Getty Images)
MIAMI, FL - JANUARY 29: Susan Barimo joins with other protesters as they stand together at the Miami International Airport against the executive order that President Donald Trump signed clamping down on refugee admissions and temporarily restricting travelers from seven predominantly Muslim countries on January 29, 2017 in Miami, Florida. Demonstrators gathered at airports across the country in protest of the order. (Photo by Joe Raedle/Getty Images)
People gather outside Terminal 4 during a protest against Donald Trump's travel ban at John F. Kennedy International Airport in Queens, New York, U.S., January 29, 2017. REUTERS/Andrew Kelly
International travelers walk past protestors holding signs as they protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Dallas/Fort Worth International Airport in Dallas, Texas, U.S. January 29, 2017. REUTERS/Laura Buckman
Protesters at Discovery Green Park during Super Bowl events in Houston, Texas, U.S., January 29, 2017. REUTERS/Trish Badger
Dozens of pro-immigration demonstrators cheer and hold sign as international passengers arrive at Dulles International Airport, to protest President Donald Trump's executive order baring visitors, refugees and immigrants from certain countries to the United States, in Chantilly, Virginia, in suburban Washington, U.S., January 29, 2017. REUTERS/Mike Theiler
Activists march to the US Capitol to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein TPX IMAGES OF THE DAY
Activists march to the US Capitol to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Activists gather at the US Capitol to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
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More than two dozen lawsuits were filed in U.S. courts against the initial travel ban, which temporarily barred travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. In one case, which ultimately got the order temporarily suspended, the state of Washington claimed standing in part because the ban affected Washington residents living and working legally in the United States as permanent residents known as green card holders.

By excluding legal permanent residents from a new order, something the administration has said is likely, the president would make it harder for opponents to challenge the ban.

Larry Klayman, founder of the conservative advocacy group Freedom Watch, said that with a narrower order, legal standing could be a real problem for potential challengers.

"If you're not a citizen, or if you're not a permanent resident, you have no constitutional rights," Klayman said.

Trump has said travel limitations are necessary to protect the United States from attacks by Islamist militants. Americans were deeply divided over the measure, which had some support but was condemned by prominent U.S. companies and allies.

The initial order caused chaos at airports, as people, including green card holders initially, were temporarily blocked from entering the United States.

Some of those people, and several states, challenged the order. The 9th U.S. Circuit Court of Appeals, ruling in the Washington case, said the ban likely violated the state's due process rights and suspended it.

The 9th Circuit also ruled that Washington had legal standing to challenge the ban, over objections from the Department of Justice.

Stephen Legomsky, former chief counsel for U.S. Citizenship and Immigration Services under President Barack Obama, said a narrower ban "weakens the arguments for standing but doesn't entirely eliminate them."

Legomsky noted that, "in general the Constitution does not apply to people outside the United States, but that is not iron clad."

A U.S. citizen whose spouse was barred from visiting by the order, for instance, could argue that he or she had standing to challenge it. Or a state university might argue that the order negatively affected it.

In its ruling, the 9th Circuit said Washington state had standing because it was harmed by Trump's order, specifically noting that faculty at the state's universities from those seven countries would be prohibited from traveling for research or academic collaboration.

"The universities' reputations depend on the success of their professors' research," the court wrote.

The one thing legal experts on all sides of the issue agree on is that the new order will be challenged in courts.

"No matter what they do there will be litigation," said Stephen Yale-Loehr. He said he thinks it likely challengers will be able to establish standing, leaving the courts to decide whether the ban is legal. At that point, Yale-Loehr says, the wording of the new order will become crucial.

"If they limit the executive order to people who have never been to the U.S. before, they might win on the merits eventually," he said.

(Reporting by Dan Levine in San Francisco and Mica Rosenberg in New York; additional reporting by Steve Holland in Washington editing by Sue Horton and Grant McCool)

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