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 couldnât give the country a warning before signing it. Many members of his own administration and fellow Republicans on Capitol Hill didnât even get to weigh in beforehand.
But since a federal judge put a freeze on Trumpâs 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, wonât go into effect for 10 days, unlike the initial order, which Trump said at the time needed to be done without notice or else âthe âbadâ would rush into our country.â
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. Trumpâs 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 â Iraqis are not not affected â 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 Trumpâs joint address to Congress was so well received.
âIf 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,â 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. âBut, as national security experts from both parties have stated, a ban is not the way to protect the country, and is in fact, counterproductive.â
In a White House press briefing Monday, press secretary Sean Spicer acknowledged that one of the main arguments for the initial orderâs hastiness was now lost. But there wasnât anything the administration could do about it.
âMake no mistake,â Spicer said, âwe 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.â
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 â even legal permanent residents â 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. âThe President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order,â they said.
That ânear futureâ came and went, and the 9th Circuit responded last week by denying the governmentâs 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.
âThe court understands Plaintiffsâ frustrations concerning statements emanating from President Trumpâs administration that seemingly contradict representations of the federal governmentâs lawyers in this and other litigation before the court,â 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 â 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.
âWe want the [executive order] to have its own âmoment,ââ one official said, according to CNN.
Axios reported a similar comment from a âtop aide,â who also reportedly said officials were making final tweaks to the orderâs language to make sure they got it right this time.
âFor once, we had the wind at our sails,â the aide told Axios, referring to the accolades Trump received in response to his speech. âWe decided not to sh*t on ourselves.â
Hours after Trump signed the new travel ban, lawyers for his administration finally had something to show the courts. âThe new Order differs from Executive Order 13,769 in critical respects,â 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 couldnât quite figure out how to carry out the presidentâs goals in a way that would hold up in court.
The ârepeated delays demonstrate just how difficult it will be for the president to craft a constitutional order,â 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.
âNearly four weeks have passed since I obtained an injunction halting President Trumpâs hastily-issued, unconstitutional and illegal executive order,â he said in an email to HuffPost. âThatâs four times as long as it took his administration to rush that initial order out the door, citing urgent national security concerns.â
The entire process of redrafting a travel ban seemed like more evidence the executive order wasnât necessary in the first place, said Marielena HincapiĂ©, executive director of the National Immigration Law Center, which was part of the Brooklyn lawsuit suit â one of the first filed against the initial order.
âYou would think if it were such a necessity for our national security and our safety that they would have issued something quickly,â HincapiĂ© said last week. âBut now delaying it because his approval ratings are increasing and they donât want his approval ratings to drop again ... undermines their arguments that this is actually necessary for national security.â