February 28, 2017

Update: What’s Next in the Effort to Overturn Trump’s Muslim Ban – and What Will the New Executive Order Likely do?

Efforts to overturn the Trump administration’s Muslim ban are expected to take a new turn this week with the issuance of a new Executive Order this coming Wednesday.

A New Executive Order Expected Wednesday

While the courts have blocked the administration from implementing its ban targeting Iranians and nationals of six other countries, we expect the administration to follow through on its threats to issue a new Executive Order. Trump’s new Executive Order has been repeatedly delayed, showcasing divisions within the administration and the difficulties of spinning a religious ban as a legal action. However, reports now indicate that the new Executive Order will be issued Wednesday, following an address from Trump before a joint session of Congress Tuesday night.

What Will the New Order Look Like?

We expect the new Executive Order to look a great deal like the initial ban that has been blocked by the courts. In fact, top White House aide Stephen Miller made the bottom line clear that the new order will only include “minor, technical differences” to address legal obstacles but “you’re still going to have the same basic policy outcome for the country.”

Based on reports, the new Order will likely:

  • Include all 7 original targeted countries, including Iran (though we know the Iraqi PM has lobbied DHS Sec Kelly to remove Iraq because it undermines efforts to defeat ISIS in Mosul);
  • Explicitly exempt green card holders;
  • Explicitly exempt dual citizens traveling on a non-Iranian passport;
  • Not include religious preference for refugee admissions;
  • Not include a ban on Syrian refugees beyond 120 days;
  • Suspend new visa applications from the targeted countries.

Questions that cannot be answered at present include:

  • Will the new order apply to current visa holders who are inside the U.S. or who have been in the U.S. but are temporarily outside?
  • Will it apply to visa holders who have not yet entered the U.S.?
  • Will it nullify existing visa applications?
  • Will it halt visa and green card adjudications?
  • Will it more clearly establish how countries can get off the list?
  • Will there be a “phase-in” period after the Order is signed, or will it go into effect immediately?

Will this Affect the Current Legal Challenges to the Order?

Most litigation against the Muslim ban is in a holding pattern while the Trump administration promises to issue a new Executive Order. The current ban remains suspended by existing court orders. However, we do not believe that the next Order will substantially affect our lawsuit with three other Iranian-American organizations (PAAIA, PARS and IABA) as the intent of the Order is unlikely to change.

Also, should the Trump administration issue a new Executive Order to supplement the existing order without rescinding it, we expect the court will allow a simultaneous challenge of both orders.

Renewed Legislative Efforts

If and when a new executive order is issued, new legislation would be necessary for Congress to rescind it. We are in close touch with staff on Capitol Hill to ensure that there will be a strong Congressional response to the new order, and will plan additional steps for you to take to ensure that Congress overturns the ban.

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