It appears the President Donald Trump’s new revised executive order on immigration may contain a fatal flaw which could be easily corrected, says public interest law professor John Banzhaf, who has been widely quoted on the Immigration Order issues, and who provided several suggestions for rewriting the order to protect it from legal attack.
Although the draft reportedly exempts green-card holders and those who already have visas, it still singles out the same seven countries, thereby preserving if not strengthening a legal argument which persuaded one federal judge, and apparently affected others: that the ban targets Muslims, and therefore illegally discriminates on the basis of religion.
“Adding even one other non-Muslim country – for example North Korea – would significantly help to undercut this argument,” says Banzhaf, noting that there is precedent for exactly such a move.
For example, at one point the Transportation Security Administration [TSA] automatically singled out for secondary screening all persons with passports from twelve countries. These included not only Muslim-majority countries, but also two non-Muslim countries: Cuba and North Korea.
Similarly, the National Security Entry-Exit Registration System [NSEERS], which was initiated in 2002 as a direct response to an unprecedented terrorist attack on the U.S. by Muslims for religious reasons, contained at least one non-Muslim country. Under the program, citizens from 25 countries were required, if they were male, to register upon entering the U.S., and to periodically report for re-registering.
A judge in Virginia has issued an injunction preventing the enforcement of the order after expressing strong concern that it discriminated on the basis of religion because all of the countries named in it are majority-Muslim countries. Other judges, although not ruling on this basis, nevertheless expressed concern that it might be illegally targeting Muslims based upon their religion.
Banzhaf had also recommended that Trump restrict the re-drafting, and all meetings and communications relating to the re-drafting, to government employees only.
This would avoid many legal complications such as those created by former New York mayor Rudy Giuliani who said President Trump wanted a “Muslim ban,” and requested he assemble a commission to show him “the right way to do it legally.”
It may be harder for opponents of any new executive order to seek to question under oath any government employees who participated in the new drafting to help show such an anti-Muslim bias, especially if no non-governmental personnel were involved, notes Banzhaf.