Trump's Next Immigration Steps

As you’ve probably heard by now, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled last night to uphold the decision of a district judge, keeping in place a temporary injunction against enforcing Trump’s immigration ban executive order. The full text of the circuit court’s opinion can be found here.

Amid all the celebrations from Trump opponents and rending of garments from Trump supporters, it bears repeating, once again, that this ruling was not on the merits. In other words, it was only a ruling on whether or not the immigration order could take effect while lawsuits were ongoing. The Trump administration, obviously, wanted the ban to be in place unless it was specifically found to be illegal or unconstitutional. Opponents wanted implementation to be halted until the issue of legality was settled.

As has already been reported, Trump faced four options: appealing to the Supreme Court for a stay of the district judge’s order; appealing for a rehearing by the full Ninth Circuit; return to district court, giving up on the appeal of the injunction and focusing on arguing the merits of the case; or redraft the executive order, addressing some of the legal concerns and rendering the decisions of both the district court judge and the circuit court moot. Trump’s tweet, sent immediately after the ruling was announced, implied that the government would seek to appeal; however, as I write this, word on the street is that the administration will redraft the executive order.

I had intended to discuss the circuit court’s opinion in depth—something I still may do at some later date. However, if the White House is truly about to revise and reissue the executive order, there’s not much hurry, because as I said, that would effectively invalidate the court opinions in question. If the executive order in question no longer existed, the entire legal process would have to start anew.

Presumably, any revised order would explicitly include exemptions for legal U.S. residents and green card holders, as well as more carefully avoiding even the appearance of a Muslim ban. Another lawsuit, no matter what the new order ultimately looks like, is inevitable; the team in the West Wing undoubtedly knows that. And the idea of a “Muslim Ban” is now too firmly rooted in the media and the public consciousness to prevent at least some negative public perception of the new order, whatever it ultimately looks like. But shoring up the administration’s legal weak points will also help the next round of legal defenses immeasurably.

At the same time, the new order can’t be too different; otherwise, Trump’s most ardent supporters will see him as caving on a key tenet of his campaign. The administration has to walk a fine line: draft an order more legally defensible than the last one, but just as pleasing to the president’s base.

If a revised order is in the offing, it will presumably come within the next few days. Then we can start this entire process all over again.