Rather than continue to fight the courts on his original executive order barring immigration from seven Middle Eastern countries, President Donald Trump announced Thursday that his administration would simply replace the order with a new one next week.
“The new order is going to be very much tailored to what I consider to be a very bad decision,” Trump said at a press conference.
President Trump has made it clear that he disagrees with the 9th Circuit Court of Appeals, which chose to uphold a block on his original travel ban. However, he has decided that it would be quicker and more efficient to go back to the drawing board, eliminate everything from the executive order that the courts objected to, and try again.
“Rather than continuing this litigation,” the Justice Department wrote in a brief, “the president intends in the near future to rescind the order and replace it with a new, substantially revised executive order to eliminate what the panel erroneously thought were constitutional concerns.
“In so doing,” the DOJ continued, “the president will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation.”
It will be difficult for the Trump administration to fully satisfy the courts with a new missive, seeing as how their objections to the first one were not entirely based on the text of the order. He can’t go back in time and erase his campaign proposal for a complete ban on Muslim immigration, after all. The judges were using that proposal, in part, to determine the constitutionality of the executive action.
Interestingly, the best way forward may be to actually make the next executive order “worse” than the first one. Include more countries, including ones where actual terrorists have originated from. That shoots down one of the court’s main arguments – that no deadly attacks came out of the seven countries included in the original ban.
There’s also the dubious claim of standing that allowed Washington State to sue Trump in the first place. If Trump specifically excludes legal U.S. residents – green card holders and such – from the ban, and limits the moratorium only to first-time visitors to the country, it’s hard to see how any U.S. entity would be able to file suit against the administration.
Of course, we’re talking about this as though we’re still playing by the usual constitutional rules. We aren’t. The court rulings on the first executive order made that patently obvious. This is an ideological war, and it would be a mistake to pretend otherwise. No matter what Trump comes out with next – no matter how many lawyers pore over it with fine-toothed combs – we will see fresh lawsuits and new rulings against the president.
And while this game is playing out, the terrorists are pouring in.
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