Justice Department officials believe lawsuits brought over President Trump’s executive order on visas and refugees will have no practical significance after Monday’s signing of a replacement order and expect that, when appropriate, DOJ attorneys will seek to have those challenges dismissed.
After the problematic roll out of a prior order signed Jan. 27 and put on hold by a federal judge three days later, the president signed a new executive order Monday meant to replace the former version.
“We anticipate most of the challenges should be mooted by this new executive order and the Department of Justice will be filling the appropriate briefs and letters in those existing cases,” a senior DOJ official said Monday during a background briefing with reporters on the new order.
The DOJ had previously stated in court filings that it hoped to end ongoing litigation over the prior order when the Trump administration introduced a substantially revised version. Justice Department officials have continued to defend the legality of the original order — in previous court filings DOJ lawyers said the new version is meant to eliminate what a federal appeals court “erroneously thought were constitutional concerns.”
Attorney General Jeff Sessions said Monday that the DOJ believes the new order, as well as the first, “is a lawful and proper exercise of presidential authority.”
“This Department of Justice will defend and enforce lawful orders of the President consistent with core principles of our Constitution,” Mr. Sessions said. “The executive is empowered under the Constitution and by Congress to make national security judgments and to enforce our immigration policies in order to safeguard the American public.”
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The original executive order blocked most travel from seven predominantly Muslim nations — Syria, Iraq, Somalia, Iran, Sudan, Libya and Yemen — until stronger vetting could be implemented, indefinitely halted the resettlement of Syrian refugees in the U.S. and blocked other refugees for 120 days, and prioritized refugee claims made by religious minorities.
The new order will eliminate several elements of that order that were highlighted as potentially unconstitutional in some of the dozens of lawsuits that challenged the travel ban, according to information provided by senior administration officials.
According to State Department and Department of Homeland Security officials, the new order will no longer include Iraq in the travel ban. It will also no longer prioritize refugee claims made by religious minorities from the remaining six majority-Muslim countries, and will not ban Syrian refugees indefinitely.
Senior officials said the order would not revoke any currently valid travel visas possessed by citizens of the six affected countries, and therefore would not create any “chaos at airports” when the order takes effect.
The signing of the original order sparked nationwide protests, with attorneys and demonstrators gathering at airports across the country to attempt to provide legal aid to affected travelers.
Lawyers challenging the original order were not so certain the new executive order would solve all the constitutional questions raised.
Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, said his organization intends to continue challenging the new executive order.
“We believe the core constitutional problem has not been eliminated — which is religious discrimination,” Mr. Gelernt said Monday. “Certain due process problems may be eliminated with the new ban, but the religious discrimination has not been eliminated.”
Although religious minority refugee claims will no longer be prioritized, Mr. Gelernt said he is concerned the travel ban as a whole still disfavors Muslims.
“I think the courts will recognize that simply changing the words of the order will not eliminate the religious discrimination,” he said.
• Andrea Noble can be reached at anoble@washingtontimes.com.
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