New U.S. travel ban on the way; Trump plans rewrite instead of legal fight over 1st order

Posted: February 17, 2017 at 4:30 a.m.

In this Feb. 4, 2017, file photo, a woman gives a thumbs up in Los Angeles, Calif., as demonstrators in favor of President Donald Trump's executive order banning travel to the U.S. from seven primarily Muslim nations stand across the street from the Tom Bradley International Terminal at Los Angeles International Airport.

SAN FRANCISCO -- President Donald Trump's administration said Thursday in court documents that it wants a pause in the legal fight over its ban on travelers from seven predominantly Muslim nations so it can issue a replacement ban as it strives to protect the nation from terrorism.

Details of the new proposal were not provided in the filing or at a wide-ranging news conference by Trump. But lawyers for the administration said in the filing that a ban that focuses solely on foreigners who have never entered the U.S. -- instead of green-card holders already in the U.S. or who have traveled abroad and want to return -- would pose no legal difficulties.

"In so doing, the president will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation," the filing said.

Trump said at the news conference that a new order would be issued next week.

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"I will not back down from defending our country. I got elected on defense of our country," he said.

Trump said the new order would "comprehensively protect our country," and he hinted that it might contain new vetting measures for travelers. Trump's first order temporarily barred refugees and citizens of seven Muslim-majority countries from entering the U.S., ostensibly so officials could review and tighten screening procedures.

"Extreme vetting will be put in place, and it already is in place in many places," Trump said. He said the administration "had to go quicker than we thought" because a federal appeals court refused to lift the suspension on his travel ban.

"The new order is going to be very much tailored to what I consider a very, very bad decision," Trump said Thursday at a White House news conference. "We can tailor the order to the decision to get just as much."

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Trump insisted that "the rollout was perfect" for his Jan. 27 executive order even though there was confusion and chaos at airports and border crossings as hundreds of immigrants and travelers, including at least one translator who worked with the U.S. military in Iraq, were detained or delayed in being admitted to the country. About 60,000 people had visas provisionally revoked. Homeland Security Secretary John Kelly told a congressional panel that implementation should have been delayed until the details were worked out.

Trump met Tuesday with Kelly and Attorney General Jeff Sessions to review options for a revised executive order.

Trump also said Thursday that he is struggling with what to do about people who were brought to the U.S. illegally as children. A program initiated by President Barack Obama called Deferred Action on Childhood Arrivals provides work permits to to those people, and Trump has suggested previously that he is considering leaving it in place.

"DACA is a very, very difficult subject for me, I will tell you," Trump said. "In some cases you have some absolutely incredible kids. I would say mostly."

"We're going to deal with DACA with heart," he said.

State AG Comments

The administration asked the 9th U.S. Circuit Court of Appeals to hold off on making any more decisions related to the travel ban lawsuit filed by Washington state and Minnesota until the new order is issued and then toss out the decision keeping the ban on hold.

Washington state Attorney General Bob Ferguson said the federal government was "conceding defeat" by saying it does not want a larger appellate panel to review the decision made last week by a three-judge panel of the 9th Circuit. The judges rejected the Trump administration's claim of presidential authority and questioned its motives in ordering the ban.

The administration criticized the decision in Thursday's court filing, saying the panel wrongly suggested some foreigners were entitled to constitutional protections and that courts could consider Trump's campaign statements about a ban.

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The lawsuit says the ban unconstitutionally blocked entry to the U.S. on the basis of religion and harmed residents, universities and sales-tax revenue in the two states. Eighteen other states, including California and New York, supported the challenge.

The appeals court had asked the Trump administration and Washington and Minnesota to file arguments by Thursday on whether a larger panel of 9th Circuit judges should rehear the case.

In his filing with the 9th Circuit, Washington state Solicitor General Noah Purcell said the ruling by the three-judge panel was consistent with previous U.S. Supreme Court decisions, so there was no basis for a review.

Purcell said Trump had campaigned on the promise to ban Muslims from entering the U.S. and one week into office issued the order that "radically changed immigration policy" and "unleashed chaos around the world."

The three-judge panel said the states had raised "serious" allegations that the ban targets Muslims, and the courts could consider statements Trump had made about shutting down Muslim immigration.

The judges also rejected the federal government's argument that courts do not have the authority to review the president's immigration and national security decisions.

They said the Trump administration presented no evidence that any foreigner from the seven countries -- Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen -- was responsible for a terrorist attack in the U.S.

The question for plaintiffs and courts after a new order is issued will be whether it makes existing litigation moot. Some experts contend the government's intent to prohibit Muslims from entering the country is too obvious to be ignored by the courts.

Lee Gelernt, the deputy director of the American Civil Liberties Union's national Immigrants' Rights Project who is involved in another legal challenge to Trump's order in federal court in New York, said it was difficult to assess a new order without seeing it, "but I think any type of ban is going to be legally problematic, and I also don't think that the taint of religious discrimination is going to go away."

"I'm not sure a revised travel ban can correct the problems," said Dina Haynes, the director of the human-rights and immigration law project at New England School of Law in Boston. "There's enough evidence out there already, regardless of what the new executive order says, to suggest that the intent was based on a protective ground of bias that would impugn most aspects of the ban."

The president has broad authority to set immigration policy, but federal judges across the country have ruled against Trump's particular travel ban. This week, a federal judge in Virginia handed down perhaps the most stinging rebuke of the executive order, declaring that there was evidence that it was motivated not by national security concerns but instead by "religious prejudice" toward Muslims.

Information for this article was contributed by Sudhin Thanawala and Martha Bellisle of The Associated Press; by Matt Zapotosky of The Washington Post; and by Jennifer Epstein and Kartikay Mehrotra of Bloomberg News.

A Section on 02/17/2017