The Trump administration’s revised executive order on refugees, issued on Monday, is in substance and presentation what the White House should have done from the beginning.
In late January, the White House issued an executive order halting admission of all refugees for 120 days and halting travel from seven majority-Muslim countries — Iraq, Iran, Syria, Yemen, Sudan, Libya, and Somalia — for 90 days to give the federal government time to review admission procedures. That Islamic State terrorists have tried to use the refugee-admission system to infiltrate Europe is well documented, and there are good reasons to believe that the United States’ vetting procedures need bolstering. Visa screenings have routinely failed to identify foreign nationals who later committed terrorist attacks in the United States. However, the White House’s overly broad legal language, which entangled legal permanent residents, Iraqi allies of U.S. forces, and others in the travel ban, distracted from its legitimate aims, as did a Friday-afternoon rollout that caught many people by surprise, among them several of the government officials responsible for executing the order. The result was a weekend of chaos at the nation’s airports, abetted by thousands of protesters.
This political backlash probably contributed to Seattle judge James Robart’s decision to temporarily enjoin the order, and the Ninth Circuit’s decision to uphold his injunction. The president’s legal authority, under Section 212(f) of the Immigration and Naturalization Act, to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” is indisputable — which is probably why the Ninth Circuit did not even bother to cite it. Instead, the appeals court justified an extravagant breach of the separation-of-powers doctrine by citing Donald Trump’s campaign statements about a “Muslim ban,” which his order most assuredly wasn’t, given that the countries it targeted were identified as concerns by the Obama administration, and its terms were temporary.
The Trump administration has wisely retreated from a battle at the Supreme Court and refashioned a narrower, clearer travel ban explicitly designed to pass muster with the judiciary. Some of the key elements are still in place, including a 120-day suspension of the U.S. Refugee Admissions Program and an annual refugee cap of 50,000, but Iraq has been removed from the list of countries from which travel is temporarily suspended (applicants from Iraq will be treated on a case-by-case basis), and the indefinite halt to Syrian refugees has been rescinded. Additionally, the administration has supplied a list of exceptions, among whom are green-card holders and foreign nationals traveling on diplomatic visas. The order also includes more-detailed justifications for the temporary travel bans on the six remaining countries, provides the sources of the president’s legal authority for the order, and expressly rejects the idea that the order discriminates against Muslims. (Regrettably, in its effort to rebut those claims, the White House removed language that permitted the prioritization of asylum claims from persecuted religious minorities.)
The clarity of the order was reflected in its rollout. Secretary of State Rex Tillerson, Homeland Security Secretary John Kelly, and Attorney General Jeff Sessions convened to present the new order at a press conference on Monday morning, explaining what it is and isn’t. Also, a ten-day delay is built into the order to give the appropriate agencies time to coordinate before the order goes into effect.
Despite the woolly reasoning of the Ninth Circuit, there was never any question of the president’s legal authority to issue his original travel ban. The problems were political — and, to that extent, self-inflicted. This new travel ban has been crafted with more care, and its implementation suggests a welcome preference for deliberateness over haste. Hopefully, strengthened vetting procedures will result that will enable the United States to accept asylum-seekers without compromising our vital national-security interests. And, hopefully, the White House has learned its lesson: that if something is worth doing, it’s worth doing right — the first time.