When President Donald Trump first issued his ban on refugees and certain foreign travelers from predominantly Muslim nations in late January, he argued the policy was so essential for national security that he couldn’t give the country a warning before signing it. Many members of his own administration and fellow Republicans on Capitol Hill didn’t even get to weigh in beforehand.
But since a federal judge put a freeze on Trump’s first executive order in early February, it has nevertheless taken his administration 31 days to announce an overhauled ban, undermining his arguments that the first one was both urgent and well thought out.
The new ban, for example, won’t go into effect for 10 days, unlike the initial order, which Trump said at the time needed to be done without notice or else “the ‘bad’ would rush into our country.”
There are some other key differences from the new executive order and the one Trump signed in late January, which has not been in effect since a court ruled against the government on Feb. 3. Trump’s new order still blocks all refugees for 120 days but does not single out Syrians for an indefinite ban. It bars certain individuals from six Muslim-majority countries for 120 days rather than the original seven ― Iraqis are not not affected ― and exempts current visa holders.
These seemingly contradictory positions have emboldened the lawyers who have been in court fighting the original ban. They received ammunition last week when an administration official reportedly told CNN that the release of a new executive order would be pushed back because Trump’s joint address to Congress was so well received.
“If the administration genuinely believed that the ban is urgently needed to protect national security, then one would assume they would not delay issuing a new order for political reasons,” Lee Gelernt, an American Civil Liberties Union attorney who is leading the travel ban challenge in Brooklyn federal court, said in an email last week. “But, as national security experts from both parties have stated, a ban is not the way to protect the country, and is in fact, counterproductive.”
In a White House press briefing Monday, press secretary Sean Spicer acknowledged that one of the main arguments for the initial order’s hastiness was now lost. But there wasn’t anything the administration could do about it.
“Make no mistake,” Spicer said, “we lost the element of surprise back when the court enjoined this in the 9th Circuit and we had to go back to the drawing board.”
Trump signed the initial executive order one week into his presidency. He said at the time that it was necessary to prevent terrorists and other people intending to harm Americans from entering the country. The order barred nationals of seven Muslim-majority nations for 90 days, all refugees for 120 days and Syrian refugees indefinitely. It blocked valid visa holders from the country ― even legal permanent residents ― and led to chaos and confusion at airports here and abroad.
Multiple plaintiffs and organizations were quick to challenge it in court, and a federal judge in Seattle temporarily halted the order nationwide on Feb. 3. Less than a week later, an appeals court refused to unblock the order.
The Trump administration announced plans for a new order in mid-February and told the public and reporters to expect it in late February. That timeline kept changing. First, officials said the new order was likely to drop Wednesday of last week, then pushed the expected release to this week.
Lawyers for the Department of Justice have told the U.S. Court of Appeals for the 9th Circuit, which is further considering the legality of the initial order, to hold off on moving forward with the case. “The President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order,” they said.
That “near future” came and went, and the 9th Circuit responded last week by denying the government’s request to delay the appeal.
In an order issued Friday, James Robart, the federal judge who first blocked the travel ban, noted these apparent discrepancies, which a group of challengers in a related case had brought to his attention.
“The court understands Plaintiffs’ frustrations concerning statements emanating from President Trump’s administration that seemingly contradict representations of the federal government’s lawyers in this and other litigation before the court,” Robart wrote.
A White House official told HuffPost last week that it was inaccurate to say the new executive order, meant to replace the travel ban blocked in the courts more than a month ago, had been delayed, because the date was never formally announced.
But White House officials had told reporters earlier that week that they had planned for a Wednesday signing day ― and those plans changed after Trump delivered his joint address to Congress last Tuesday evening, indicating the decision was at least in part because the president had received positive feedback on the speech.
“We want the [executive order] to have its own ‘moment,’” one official said, according to CNN.
Axios reported a similar comment from a “top aide,” who also reportedly said officials were making final tweaks to the order’s language to make sure they got it right this time.
“For once, we had the wind at our sails,” the aide told Axios, referring to the accolades Trump received in response to his speech. “We decided not to sh*t on ourselves.”
Hours after Trump signed the new travel ban, lawyers for his administration finally had something to show the courts. “The new Order differs from Executive Order 13,769 in critical respects,” a DOJ attorney advised the 9th Circuit on Monday.
But some opponents of the original executive order suggested that the administration may have been taking a long time to draft a new and improved travel ban because officials couldn’t quite figure out how to carry out the president’s goals in a way that would hold up in court.
The “repeated delays demonstrate just how difficult it will be for the president to craft a constitutional order,” said Washington State Attorney General Bob Ferguson last week. He spearheaded the lawsuit that led to the nationwide injunction that kept the travel ban from being enforced.
“Nearly four weeks have passed since I obtained an injunction halting President Trump’s hastily-issued, unconstitutional and illegal executive order,” he said in an email to HuffPost. “That’s four times as long as it took his administration to rush that initial order out the door, citing urgent national security concerns.”
The entire process of redrafting a travel ban seemed like more evidence the executive order wasn’t necessary in the first place, said Marielena Hincapié, executive director of the National Immigration Law Center, which was part of the Brooklyn lawsuit suit ― one of the first filed against the initial order.
“You would think if it were such a necessity for our national security and our safety that they would have issued something quickly,” Hincapié said last week. “But now delaying it because his approval ratings are increasing and they don’t want his approval ratings to drop again ... undermines their arguments that this is actually necessary for national security.”