Trump's new travel ban could be harder to fight in court: experts

NEW YORK (Reuters) - President Donald Trump's announcement on Sunday restricting travelers from an expanded list of countries has already been roundly criticized by immigrant and civil rights groups as no more lawful than his previous travel ban, but it could stand a better chance of holding up in court, legal experts said.

The new presidential proclamation, which Trump said is needed to screen out terrorist or public safety threats, indefinitely restricts travel from Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea. Certain government officials from Venezuela will also be barred.

Trump's Mar. 6 temporary travel ban, which replaced another ban from January and expired on Sunday, targeted six Muslim-majority countries. It sparked international outrage and was quickly blocked by federal courts as unconstitutional discrimination or a violation of immigration law.

In June, the U.S. Supreme Court allowed a limited version of the ban to go ahead while the justices examine its legality.

RELATED: Protests against Trump's travel ban

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Protests against Trump's proposed travel ban
People protest U.S. President Donald Trump's travel ban outside of the U.S. Court of Appeals in Seattle, Washington, U.S. May 15, 2017. REUTERS/David Ryder
A man holds an umbrella during a protest of U.S. President Donald Trump's travel ban outside of the U.S. Court of Appeals in Seattle, Washington, U.S. May 15, 2017. REUTERS/David Ryder
A protester from Amnesty International rallies against U.S. President Donald Trump's new executive order temporarily banning the entry of refugees and travelers from six Muslim-majority countries in Sydney, Australia, March 9, 2017. REUTERS/Jason Reed
Demonstrator protests against President Donald Trump's revised travel ban outside the offices of the U.S. Immigration and Customs Enforcement in Chicago, Illinois, U.S., March 16, 2017. REUTERS/Kamil Krzaczynski
A woman protests against U.S. President Donald Trump's travel ban outside of the U.S. Court of Appeals in Seattle, Washington, U.S. May 15, 2017. REUTERS/David Ryder
Chrissy Pearce protests outside the 9th U.S. Circuit Court of Appeals courthouse in San Francisco, California February 7, 2017, ahead of the Court hearing arguments regarding President Donald Trump's temporary travel ban on people from seven Muslim-majority countries. REUTERS/Noah Berger
Demonstrators protest against President Donald Trump's revised travel ban outside the offices of the U.S. Immigration and Customs Enforcement in Chicago, Illinois, U.S., March 16, 2017. REUTERS/Kamil Krzaczynski
Demonstrators protest against U.S. President Donald Trump's revised travel ban outside the offices of the U.S. Immigration and Customs Enforcement in Chicago, Illinois, U.S., March 16, 2017. REUTERS/Kamil Krzaczynski
NEW YORK, NY - MARCH 28: Protestors rally in front of the Trump Building on Wall Street during a protest against the Trump administration's proposed travel ban and refugee policies, March 28, 2017 in New York City. The Trump administration's proposed travel ban includes a provision that would bar refugees entry into the United States for 120 days. (Photo by Drew Angerer/Getty Images)
NEW YORK, NY - MARCH 28: Protestors place photographs of refugees in rafts in front of the Trump Building on Wall Street during a protest against the Trump administration's proposed travel ban and refugee policies, March 28, 2017 in New York City. The Trump administration's proposed travel ban includes a provision that would bar refugees entry into the United States for 120 days. (Photo by Drew Angerer/Getty Images)
CHICAGO, IL - MARCH 16: Demonstrators protest outside the office of Immigration and Customs Enforcement (ICE) on March 16, 2017 in Chicago, Illinois. The demonstrators were protesting the revised travel ban that the administration of President Donald Trump was trying to implement. The ban, which would restrict travel from six predominantly Muslim countries, was supposed to be instituted today but was halted yesterday by a federal judge in Hawaii. (Photo by Scott Olson/Getty Images)
Demonstrators gather near The White House to protest President Donald Trump's travel ban on six Muslim countries on March 11, 2017 in Washington, DC. / AFP PHOTO / Tasos Katopodis (Photo credit should read TASOS KATOPODIS/AFP/Getty Images)
Demonstrators gather near The White House to protest President Donald Trump's travel ban on six Muslim countries on March 11, 2017 in Washington, DC. / AFP PHOTO / Tasos Katopodis (Photo credit should read TASOS KATOPODIS/AFP/Getty Images)
WASHINGTON, DC - FEBRUARY 3: Protestors write messages directed toward President Donald Trump on lanterns near the Washington Monument, February 3, 2017 in Washington, DC. The protest is aimed at President Trump's travel ban policy. (Photo by Drew Angerer/Getty Images)
Thousands of protesters with banners and placards march through central London during a demonstration against U.S. President Donald Trump on February 4, 2017 in London, England. Thousands of protesters march from the U.S. Embassy in London to Downing Street today against President Trump's executive order banning immigration to the USA from seven Muslim countries. (Photo by Jay Shaw Baker/NurPhoto via Getty Images)
NEW YORK, NY - JANUARY 29: Linda Sarsour attends a rally to protest the executive order that President Donald Trump signed clamping down on refugee admissions and temporarily restricting travelers from seven predominantly Muslim countries in New York City on January 29, 2017 in New York City. (Photo by Noam Galai/WireImage)
MELBOURNE, AUSTRALIA - FEBRUARY 03: Demonstrators protest against US President Donald Trump's ban on people from seven Muslim-majority countries entering the US on February 3, 2017 in Melbourne, Australia. The demonstrators are protesting against United States President Donald Trump's travel ban affecting citizens from seven Muslim-majority countries. (Photo by Scott Barbour/Getty Images)
Rosalie Gurna, 9, holds a sign in support of Muslim family members as people protest against U.S. President Donald Trump's travel ban on Muslim majority countries, at the International terminal at Los Angeles International Airport (LAX) in Los Angeles, California, U.S., January 28, 2017. REUTERS/Patrick T. Fallon TPX IMAGES OF THE DAY
People protest against President Donald Trump's travel ban in New York City, U.S., February 1, 2017. REUTERS/Brendan McDermid TPX IMAGES OF THE DAY
Demonstrators participate in a protest by the Yemeni community against U.S. President Donald Trump's travel ban in the Brooklyn borough of New York, U.S., February 2, 2017. REUTERS/Lucas Jackson TPX IMAGES OF THE DAY
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The proclamation, set to go into effect on Oct. 18, could be less vulnerable to legal attack, scholars and other experts said, because it is the result of a months-long analysis of foreign vetting procedures by U.S. officials. It also might be less easily tied to Trump's campaign-trail statements some courts viewed as biased against Muslims.

"The greater the sense that the policy reflects a considered, expert judgment, the less the temptation (by courts) to second-guess the executive," said Saikrishna Prakash, a professor at the University of Virginia School of Law, in an email. "It looks less like a matter of prejudice or a desire to fulfill a campaign promise."

The government has said the president has broad authority in immigration and national security matters, but challengers to the Mar. 6 ban had argued that it ran afoul of the U.S. Constitution's bar on favoring one religion over another.

They cited statements Trump made during his 2016 campaign for president, including his call for a "total and complete shutdown of Muslims entering the United States."

Within hours of Sunday's proclamation, representatives for the Hawaii, New York and California attorneys general said their offices were reviewing the new restrictions. Advocacy organizations denounced it as more of the same.

"This is still a Muslim ban - they simply added three additional countries," said Becca Heller, director of the International Refugee Assistance Project, which previously sued to block Trump's travel ban executive orders.

"Of those countries, Chad is majority Muslim, travel from North Korea is already basically frozen and the restrictions on Venezuela only affect government officials on certain visas," Heller said.

But the worldwide review, and the new restrictions tailored by country, could weaken such arguments in court.

While the previous ban targeted Muslim-majority nations Iran, Libya, Syria, Yemen, Somalia and Sudan, the restrictions announced on Sunday include North Korea and Venezuela and omits Sudan altogether. It also allows some travelers from Somalia and Iran to enter the U.S.

The review also examined each country's ability to issue reliable electronic passports and share security risk data with the U.S. Overall, 47 countries had problems, and 40 made improvements, including 11 that agreed to share information on known or suspected terrorists, Trump's proclamation said.

The review "at least arguably attenuates the link between the president's alleged bias and the policy," said Margo Schlanger, a University of Michigan Law School professor.

OPENINGS FOR CHALLENGERS

The Supreme Court is scheduled to hear arguments over the original travel ban on Oct. 10, including whether it discriminated against Muslims. Sunday's proclamation could lead the high court to skip deciding the case altogether.

While new claims of religious discrimination might be harder to press, experts said challengers could potentially argue that the expanded ban violates the federal Immigration and Nationality Act, which forbids the government from discriminating based on an individual's nationality when issuing visas. "Congress decided that it didn't want an immigration system that played favorites among countries," Schlanger said.

Jeffrey Gorsky, the former chief of the legal advisory division at the U.S. State Department's Visa Office, said the new ban could be viewed as overly broad in whom it applies to, keeping out all manner of people from those countries "with no evidence of adverse affect on U.S. interests."

(Reporting by Andrew Chung. Additional reporting by Lawrence Hurley in Washington and Dan Levine in San Francisco; Editing by Chizu Nomiyama)

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