President Trump issued a revised version of his controversial immigration executive order this morning. The new EO is largely similar to the previous version, with some important changes meant to insulate it from legal challenges. Permanent residents and visa holders are no longer covered by the ban, for example, while a preference for Christians and other religious minorities has been dropped.
But what will the new order mean for the litigation currently playing out in federal courts, including Washington State's ongoing challenge to the previous order?
Fast-Paced Legal Battles Over EO
Trump's original order led to a flurry of fast-paced lawsuits. The most successful so far has been Washington v. Trump, a challenge by the Evergreen State that led to a nationwide restraining order against enforcement of the EO. That order, upheld by a unanimous Ninth Circuit panel several weeks ago, has been in place for over one month now.
Notably, the Ninth Circuit ruled that the president does not, despite arguments from the Department of Justice, possess an "unreviewable" ability to suspend travel and immigration from certain countries. Further, Washington was likely to prevail on its due process challenges to the order, the Ninth ruled.
Since then, the litigation has continued to play out, even as government lawyers promised a revised EO was on its way.
Several Options Moving Forward
Now that the order is here, there are a few ways the dispute could continue. The first would be to start anew, relitigating the new EO.
This seems to be the avenue government lawyers are pursuing. After initially seeking en banc review of the Ninth Circuit decision against the ban, the government shifted positions last month, requesting that the Ninth "hold its consideration of the case until the President issues the new Order and then vacate the panel's preliminary decision."
The administration itself, however, has indicated that another route might be possible. While the new EO explicitly revokes the original, White House press secretary Sean Spicer has said that the administration will pursue legal challenges on a "dual track," defending both the old and new orders alike. That "could lead to an intensifying legal battle -- on two fronts, not one -- that could bring continued uncertainty about who is being banned from the country, and who is not," according to the Constitution Daily's Lyle Denniston.
Washington State, it seems, is still considering how to move ahead. Having opposed the government's motion to pause the Ninth Circuit litigation earlier last month, the state now says that it is reviewing the new EO "to determine its impacts on Washington State and our next legal steps."
- Trump Signs Revised Travel Ban Aimed at Withstanding Legal Scrutiny (The Washington Post)
- Will Trump's Immigration Ban Find a Friendlier Audience in the Supreme Court? (FindLaw's U.S. Supreme Court Blog)
- The Most Telling Citations From the 9th's Immigration Ban Ruling (FindLaw's U.S. Ninth Circuit Blog)
- What's Happened and What's Ahead in Washington v. Trump (FindLaw's U.S. Ninth Circuit Blog)