Why the President's Revised Travel Ban Could Run Into Legal Problems

February 22nd 2017

Kyle Jaeger

Senior White House advisor Stephen Miller may have already hurt President Donald Trump's chances of succeeding in court if his revised executive order on immigration faces legal challenges, according to experts in constitutional law.


Following a sound defeat in a federal appeals court on Feb. 7, when a three-judge panel unanimously upheld a temporary restraining order against the travel ban, the Trump administration announced that it would rewrite the order to address the constitutional concerns raised in court. The ban barred people from seven Muslim-majority countries from entering the United States for 90 days, and indefinitely prohibited Syrian refugees.

The Trump administration has decided to revise the order rather than defend its previous one on the merits. The federal judges who threw that one had had referenced past statements by Trump and his campaign advisors calling for a "Muslim ban" as evidence that the order violated constitutional anti-discrimination protections.

Miller's recent comments on Fox News could be used as another piece of evidence suggesting animus toward Muslims, not just immigrants from a few countries, if the new order is challenged.

Asked what would be different about the revised executive order, Miller first described the judicial ruling as "flawed" and "erroneous." He then said there would be "minor, technical differences" but that, "fundamentally, you’re still going to have the same basic policy outcome for the country."

It's unclear what Miller meant specifically by "technical difference," as the 9th Circuit Court of Appeals upheld the temporary restraining order against the travel ban in large part based on the unlikeliness that the federal government would prevail in a court battle defending the legal merits of the order.

Miller's admission that there would be no substantive differences "may have doomed the new order to the same fate as its predecessor," The New Republic's Jeet Heer wrote, "since a court challenge could easily argue that it has all the same legal problems."

[h/t The New Republic]