Of Donald Trump’s executive orders to date, his so-called “Muslim Ban” has drawn the most attention and controversy. In addition to causing mass confusion and chaos, Trump’s order also brought tensions between the Executive and Judicial branches of government to a head. Facing public outcry and judicial resistance, Trump revoked his original order and replaced it with an updated version, published on 6 March. Trump’s newer bill is written to tackle issues raised by both the public and the courts.
The order, under the same title as the first (‘Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States’), sets out an immigration policy that keeps the bulk of his original plan with just a few key differences.
The first big change was whittling down the number of countries affected from seven to six. Due to the strategic relationship between the United States and Iraq, Iraq has been removed from the list of target countries. While Iraq has been dropped from the list of countries experiencing a blanket immigration ban, Iraqi nationals will continue to face additional scrutiny, including an inquiry into potential connections to IS.
One of the many questions Trump’s original order brought up was the effect of the order on dual nationals – for example a Syrian with a French passport. Trump’s updated order contains far more specificity about who can, and cannot, enter the country. Under the current order, dual nationals are exempt, along with five other named exceptions. The order also allows, but does not guarantee, waivers for students returning to continue studies, medical care of children, and family unification.
The timeline of this order will also differ slightly from the first – the changes will be rolled out over the coming ten days to avoid the chaos of mid-flight changes to immigration policy. This change will also prevent airports from becoming makeshift law firms.
Another significant change is the revoking of the ‘Christian exception’, a provision allowing for the prioritisation of religious minorities applying for refugee status. Seen as discrimination based on religion, an internationally condemned policy, Trump replaced the provision with a defence of his original position and an assurance that the intent was to protect, not discriminate.
Although Trump maintained his limit of allowing entry to 50,000 refugees per fiscal year and a 120 day suspension of all refugee applications, he has lifted the indefinite ban on Syrian refugees. With several European countries currently threatening to sue one another over Syrian refugee admission (Hungary and Slovakia filed lawsuits in 2015) and refugees themselves raising lawsuits, Trump’s decision to lift the ban on Syrians was a wise decision politically as well as legally.
Notably, this order excludes reference to the 11 September, 2001 attacks. Prominent in the original order, many people called Trump out for referencing an attack that was carried out by nationals of four countries – none of which were listed in his order. Instead, Trump has shifted to a more general anti-terror rationale.
Despite these changes, the new ‘Muslim Ban’ is unlikely to appease many opponents of the original order. With the bulk of the order intact, many will view Trump’s revised order as merely the same old Muslim Ban dressed in prettier clothes. The order is still focused exclusively on predominantly Muslim countries and opponents fear that such a ban will only strengthen anti-Muslim rhetoric in the US, and could be used to whip up nationalist sentiment. In some sense, this new order is even more worrying than its predecessor, since its increased specificity and apparent removal of the most legally flimsy provisions makes it more likely to be upheld by courts.
On the other hand, this order will be much more acceptable to those who support a more restrictive immigration policy but who were unhappy with Trump’s original attempt. From a practical and logistical perspective, this new order erases much of the uncertainty of the first one and offers a more organised transition that is less likely to cause the type of disruption seen when the policy changed without warning and while many affected individuals were en route to the US. With more exceptions and the possibility of discretionary waivers, Trump’s new order lacks the hasty and chaotic feel of the original order.
It is Trump’s hope that the updated executive order is specific enough to pass judicial scrutiny and withstand the legal battles his first order was on course to losing and politically palatable enough to prevent another public backlash. On one front, he will likely succeed. The public has already voiced its discontent and a new and improved policy is unlikely to generate the same sort of energy, or even attention, as the initial order. Particularly now that the order is written to appeal to a broader base, including unhappy Republicans and Conservatives, Trump can expect less resistance from his own voter base.
The legal battles are another story. No strangers to long, drawn out battles, lawyers around the country are gearing up for a second round of litigation. Even if Trump’s order is not immediately struck down in the courts, he is facing a long road and multiple legal challenges. It is likely that every substantive provision in the order will be challenged, from the temporary measures to the publishing of crimes committed by foreigners. Bolstered by a first success, advocates will approach these challenges vigorously and Trump can expect to catch grief at every turn.
Politically speaking, Trump’s move in issuing the second order was the only wise one he could have made at this point. He cannot abandon his plan and simply give in to protestors, nor can he realistically spend his presidency trying to fight with the Judicial branch. Now his only option is to compromise and try to push through as much of his own policy as possible with the least amount of resistance. Whether it was Trump’s intent to originally issue such a broad and unworkable order as part of a negotiation tactic (known as ‘anchoring high’) or if it was simply poorly thought out is anybody’s guess. Regardless, Trump’s new order is on track to becoming just one more battle in a presidency that is starting to look more and more like a war.