WASHINGTON — Under pressure from the courts, President Trump has rescinded his executive order instituting a travel ban and replaced it with one that's more narrowly tailored — but also more than twice as long.
Trump's new, 6,100-word order represents an unusual attempt to have an executive order explain and defend the order itself, both to the courts and to the public. It begins with an extraordinary 19-paragraph section explaining the "policy and purpose" behind the travel ban. "It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals," Section 1 of the order begins.
It then recites the history of the first executive order, addresses specific issues raised by the courts, and gives a country-by-country rationale for the six predominately Muslim countries included in the list of banned countries. It even references specific cases of refugees
The previous order signed Jan. 27 contained just four paragraphs of explanation.
"Executive orders very often have preambles that explain the rationale for having the executive order in the first place. This is an unusually elaborate one, it seems to me. And in some ways a defensive one," said William Araiza, a Brooklyn Law School professor.
In some places, it even seems to defend parts of the original executive order that Trump has since rescinded.
For example: Iraq was dropped from the list of seven majority-Muslim counties the travel ban was applied to. The remaining countries are Iran, Libya, Somalia, Sudan, Syria and Yemen.
"Iraq presents a special case," Trump said in explaining its removal from the list. "Since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal."
White House aides say the president still stands behind the original executive order.
"When you look at how the court adjudicated that, their facts were wrong," press secretary Sean Spicer told reporters in his office Monday.
"I think we recognized that we could have been in litigation for up to a year on this, and that would have left the country exposed," he said. "We 100% maintain that the executive order as initially drafted is completely constitutional and legal."
300 refugees under investigation?
The new executive order asserts that more than 300 refugees in the United States are currently the target of counterterrorism investigations by the FBI. The Justice Department declined to release more details on those cases.
But Trump cited two specific cases as evidence for the need for a travel ban. One was a Somalian arrested in a 2010 FBI sting operation for attempting to bomb a Christmas tree-lighting ceremony in Portland, Ore. The other case involved two Iraqi refugees convicted in a Kentucky court of trying to kill U.S. soldiers while in Iraq.
That's the case that Trump counselor Kellyanne Conway has referred to as the "Bowling Green massacre."
The examples seem to be a direct response to the the 9th Circuit Court of Appeals, which ruled last month that the Trump administration failed to make its case. "The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States," a three-judge panel wrote in a unanimous opinion. "Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all."
Here's the new version of President Trump's travel ban executive order
5 differences in Trump's new travel ban
Trump's order addresses the court directly: "In light of the Ninth Circuit's observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens."
"This is a litigation document," said Elizabeth Goitein of the Brennan Center for Justice, which has opposed the ban. She said there's little change to the substance of the policy, but rather a new argument for the old executive order. "The attempt here is to essentially get the same result with what the administration feels has the necessary legal bells and whistles to satisfy the courts."
That means a key issue for the courts going forward is whether Trump has corrected any discriminatory intent through a more narrowly tailored order. "You can't uncook the spaghetti. He's already tipped his hand about what his intent was," Goitein said.
Matthew Eshbaugh-Soha, a University of North Texas political scientist, said Trump's first order reminded him of "a student writing a paper the night before the paper is due."
"It takes time to make good policy," he said. "It certainly stands a better chance than the first one, and it shows that the President Trump is learning what it means to be president, and that can't always be conveyed in a tweet. It has to be specific and detailed."
This executive order, Eshbaugh-Soha said, explained the policy much more clearly — and could be an example for future executive orders.
"I think presidents would be wise to communicate not just to executive agencies or the courts with these executive orders, but also put them in a way that the public can understand them," he said.