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<span class="articleLocation”>In formulating a new executive order limiting
travel to the United States, President Donald Trump has promised
to make the directive harder to fight successfully in court than
the one he issued in January.
One way the administration will likely try to do that, legal
experts say, is to shape the order more narrowly to undercut the
opportunity for states and other opponents to sue by showing
courts they have “standing,” or the ability to argue the
president’s order causes them harm.
But legal experts said a new order, which a White House
source said was likely to be announced on Wednesday, was unlikely to fully eliminate the ability of challengers to pursue
More than two dozen lawsuits were filed in U.S. courts
against the initial travel ban, which temporarily barred
travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and
Yemen. In one case, which ultimately got the order temporarily
suspended, the state of Washington claimed standing in part
because the ban affected Washington residents living and working
legally in the United States as permanent residents known as
green card holders.
By excluding legal permanent residents from a new order,
something the administration has said is likely, the president
would make it harder for opponents to challenge the ban.
Larry Klayman, founder of the conservative advocacy group
Freedom Watch, said that with a narrower order, legal standing
could be a real problem for potential challengers.
“If you’re not a citizen, or if you’re not a permanent
resident, you have no constitutional rights,” Klayman said.
Trump has said travel limitations are necessary to protect
the United States from attacks by Islamist militants. Americans
were deeply divided over the measure, which had some support but
was condemned by prominent U.S. companies and allies.
The initial order caused chaos at airports, as people, including green card holders initially, were temporarily blocked
from entering the United States.
Some of those people, and several states, challenged the
order. The 9th U.S. Circuit Court of Appeals, ruling in the
Washington case, said the ban likely violated the state’s due
process rights and suspended it.
The 9th Circuit also ruled that Washington had legal
standing to challenge the ban, over objections from the
Department of Justice.
Stephen Legomsky, former chief counsel for U.S. Citizenship
and Immigration Services under President Barack Obama, said a
narrower ban “weakens the arguments for standing but doesn’t
entirely eliminate them.”
Legomsky noted that, “in general the Constitution does not
apply to people outside the United States, but that is not iron
A U.S. citizen whose spouse was barred from visiting by the
order, for instance, could argue that he or she had standing to
challenge it. Or a state university might argue that the order
negatively affected it.
In its ruling, the 9th Circuit said Washington state had
standing because it was harmed by Trump’s order, specifically
noting that faculty at the state’s universities from those seven
countries would be prohibited from traveling for research or
“The universities’ reputations depend on the success of
their professors’ research,” the court wrote.
The one thing legal experts on all sides of the issue agree
on is that the new order will be challenged in courts.
“No matter what they do there will be litigation,” said
Stephen Yale-Loehr. He said he thinks it likely challengers will
be able to establish standing, leaving the courts to decide
whether the ban is legal. At that point, Yale-Loehr says, the
wording of the new order will become crucial.
“If they limit the executive order to people who have never
been to the U.S. before, they might win on the merits
eventually,” he said. (Additional reporting by Steve Holland in Washington)
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