New Travel Order May Still Have Legal Obstacles, Analysts Say


Publish Date:
March 6, 2017
  • Egelko, Bob
San Francisco Chronicle
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President Trump’s new version of a 90-day ban on U.S. entry from selected Muslim-majority countries has been stripped of some of its most legally vulnerable provisions, such as its application to legal U.S. residents and visa holders.

The new executive order also includes 10 days’ notice before it takes effect, allowing travelers to enter the United States if they’re already on the way. And, unlike Trump’s previous order, which federal courts have blocked, this one allows those who have been denied entry to apply for waivers on various hardship grounds.

Despite the new revisions, said Jayashri Srikantiah, a Stanford law professor and director of the school’s Immigrants’ Rights Clinic, “the executive order continues to target individuals from majority Muslim countries and nowhere else. … The problem is the underlying motivation.”

Another Stanford law professor, Michael McConnell, had a different view. A 1972 Supreme Court ruling, he said, recognized far-reaching presidential authority over issues of foreign policy and national security and made the president’s motives irrelevant.

“It would be quite extraordinary, I think, for the judiciary to second-guess this order and say, ‘No, it’s unconstitutional because we suspect a bad motive,’” said McConnell, who was a federal appeals court judge from 2002 to 2009.

However, McConnell, the Stanford law professor and former appeals court judge, said Congress and the Supreme Court had given broad powers to the president to determine the national interest on such issues, “because of the nature of intelligence the president is privy to and the courts are not.”

“It’s not an issue for the court,” he said. “It’s a legitimate issue for political debate.”

But McConnell declined to predict the outcome. He said Trump has hurt his case by questioning the competence or impartiality of the courts that have ruled against him, including his reference to the “so-called judge” in Seattle who blocked the Jan. 27 order nationwide.

“It would be helpful if he doesn’t insult the judges next time,” McConnell said.

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