What are the differences between Trump's old travel ban and the new one?

Question

Trump recently signed a revised executive order to restrict travellers from specified countries for 90 days.

What are some of the differences between the 2 executive orders (13769 and 13780)?

score 49 · Accepted Answer · edited Jun 17 '20 at 09:20

49

There are a few major difference between the two executive orders.

Basic information

Both executive orders share the same name, but has different numbers.

Initial Order: Protecting the Nation from Foreign Terrorist Entry into the United States (13769) - Issued and effective on Jan 27, 2017
Revised Order: Protecting the Nation from Foreign Terrorist Entry into the United States (13780) - Issued on Mar 6, 2017, effective on Mar 16, 2017

1. Iraq is now not included in the revised travel ban.

As quoted from the fact sheet provided by the White House:

On the basis of negotiations that have taken place between the Government of Iraq and the U.S. Department of State in the last month, Iraq will increase cooperation with the U.S. Government on the vetting of its citizens applying for a visa to travel to the United States. As a result of this increased information sharing, Iraqi citizens are not affected by the Executive Order.

This is likely due to lobbying from the Iraqi government, as quoted from this CNN article:

Iraq was removed from the revised travel ban executive order after intensive lobbying from the Iraqi government at the highest levels, according to a senior US official.

That included a phone call between Trump and Iraqi Prime Minister Haider al-Abadi on February 10 and an in-person conversation between Abadi and Vice President Mike Pence in Munich on February 18.

(emphasis mine)

2. Visas previously issued will be valid.

All visas that were issued before the effective date of the order will continue to be valid.

Text of the executive order:

(a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:

(i) are outside the United States on the effective date of this order;

(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and

(iii) do not have a valid visa on the effective date of this order.

(emphasis mine)

WH FAQ:

Thus any individual who had a valid visa either on January 27, 2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from entry.

(emphasis mine)

3. It will not go into effect immediately.

The effective date of the order is 12:01am EDT on March 16.

Technically, this means that citizens from the mentioned countries can continue to apply for visas for 10 days, though it is not mentioned if any applications will be approved.

4. Permanent residents are not included in the ban

Lawful permanent residents or green-card holders will not be included in the ban.

(b) Exceptions. The suspension of entry pursuant to section 2 of this order shall not apply to:

(i) any lawful permanent resident of the United States;

[ ... ]

(emphasis mine)

Useful links:

edited Jun 17 '20 at 09:20

Community

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answered Mar 06 '17 at 17:55

Panda

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For what it is worth, I was chatting with a lawyer last week (pre-exec order) who had been following this in the news. He said it was his understanding that the new executive order was intended to be as close to the first but with minor tweaks to strip detractors of [Standing] (https://en.wikipedia.org/wiki/Standing_(law)) so that they could not challenge it in court. Based on what is listed here I think that seems to make sense. – Mar 06 '17 at 19:51
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The first is hung up in court. The second is not (at least, not yet). :)

Mar 06 '17 at 23:49

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@DanK: I suppose the administration's way of looking at that, is that the new order is as close as possible to the first, but with minor tweaks to make it legal. Not that I expect many of Trump's team to publicly admit that the orginal order wasn't legal. – Steve Jessop Mar 07 '17 at 11:01

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@SteveJessop The original entry ban was legal. Stupid, but legal. It's authorized by 8 USC 1182(f), which effectively gives the President the power to ban any class of (or all) non-U.S. citizens from entering the country whenever he wants to for however long he wants to if he deems it "to be in the national interest." It's an absurdly broad statute that really needs to be either reduced or eliminated by Congress. The part of the original EO that was likely illegal was the part that allowed religious discrimination for the refugee admission program, but that didn't affect the entry ban section. – reirab Mar 07 '17 at 19:12

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@reirab the fact that a statute authorizes something doesn't make that thing legal. Like every federal statute, 8 USC 1182(f) is subject to review by the courts where it conflicts with the constitution or with other statutes (such as 8 USC 1152). The other view is that the EO was illegal because it was motivated by religious animus, even if that was not inherent in the text. Court precedent holds that a discriminatory purpose is by itself sufficient to render an act discriminatory. – phoog Mar 08 '17 at 06:01

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Also, to the extent that the order banned certain aliens who had due process rights because of their prior connections with the US, it was argued that it deprived those aliens of property interests without due process. That argument appeared to receive favor from the courts, though there has not yet been a final ruling, of course. The administration has designed the new order to avoid having to defend against that argument, which can be seen, as noted by @SteveJessop, as implicitly accepting the argument's merits. – phoog Mar 08 '17 at 06:39

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It is false that the original ban was legal. As evidenced by it being blocked by the Judiciary. Any other interpretation of the law is nonsense since the law has spoken and it defeated both the Executive and any citizen's opinion. – Venture2099 Mar 08 '17 at 09:53

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@Venture2099 - the court did not say the ban was illegal. They said that there was a good possibility that, if it was prosecuted, it would be found to be illegal - and that in the meantime application would cause irreparable harm. Thus the injunction. And on appeal "The appeals court order issued Thursday ruled only on the narrow question of whether to stay a lower court’s temporary restraining order blocking the travel ban." and “For now, it is enough for us to conclude that the government has failed to establish that it will likely succeed on its due process argument in this appeal.” – Floris Mar 08 '17 at 17:30

@reirab - isn't the US Code subordinate to the Constitution and Bill of Rights? – Mar 09 '17 at 03:04

@HorusKol: Yes -- though the Bill of Rights is part of the Constitution (namely, its first ten amendments), so "the Constitution and Bill of Rights" is a bit redundant. :-) – ruakh Mar 09 '17 at 04:14

@HorusKol Yes, of course the USC is subordinate to the Constitution (of which the Bill of Rights is a part.) There's nothing in the Constitution that prevents an entry ban, though. The only Constitutional arguments would be the violation of freedom of religious practice and violation of due process arguments that phoog mentioned. Personally, I find both of those to be extremely tenuous in regards to the entry ban. However, I do agree that the section allowing religious discrimination in USRAP was illegal (which is probably why it is notably absent from the new EO.) – reirab Mar 09 '17 at 15:41

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@rierab: but why is your finding, that those arguments are "extremely tenuous", more significant than the findings of the few courts who considered the arguments to have sufficient merit to suspend the order on the grounds that permanent residents could not just be banned like that? Likely it will always remain a matter of opinion whether the original order was or was not authorised by law: withdrawing it will probably end the cases in favour of cases about the new one. But so far as the original was tested in court, it partly failed and was changed in response to that. – Steve Jessop Mar 09 '17 at 16:05

@reirab from what I understand over at law.stackexchange there were a lot more issues with the first order that are not addressed by the changes listed above – Mar 09 '17 at 21:41

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@HorusKol That post was "issue spotting," not necessarily listing things that were actually wrong. It's intended as a list of things that someone challenging the law should research to see if there's a good argument there, not a list of things for which there actually is a good argument. – reirab Mar 10 '17 at 01:07

@SteveJessop As far as I know, how permanent residents can or cannot be treated had little, if anything, to do with the stay. Indeed, permanent residents were not being affected by the first EO by the time the stay was issued. The stay was issued mostly on the basis of suspending the law would cause little or no harm to the government while allowing it to remain in effect while the case was considered would likely cause significant and irreparable harm to those seeking relief. – reirab Mar 10 '17 at 01:12

@reirab: I haven't actually read the rulings, but for example "The lower-court judge temporarily halted the ban after determining that the states were likely to win the case and had shown that the ban would restrict travel by their residents...". Maybe the court didn't really determine that. To quote a great, or at any rate highly-elevated, man, "I don't know, you tell me" ;-) – Steve Jessop Mar 10 '17 at 01:19

score 29 · Answer 2 · answered Mar 06 '17 at 18:09

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Adding some points to Panda's answer:

The new order clarifies the situation for dual citizens. Travelers will be treated based on the passport they present; for instance, a British citizen can still enter even if she is also a Syrian citizen, as long as she is traveling on her British passport.
Anyone who had a visa when the last order took effect can travel; even if the visa was revoked based on the last order, the new order provides for them to get a document allowing them to travel to the US.
Anyone in the US when the order goes into effect is not affected, nor is anyone admitted after the order goes into effect (so if you get a waiver and travel to the US, you don't need to reapply for a waiver to come a second time).
Consular officers now have the authority to waive the suspension, and there are examples in the order of when a waiver may be justified.
The refugee program is still suspended, but there is no longer a priority for religious minorities.

answered Mar 06 '17 at 18:09

cpast

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So considering these changes, how is it intended to prevent terrorists from entering the country? It seems very easy to circumvent. – Dai Mar 06 '17 at 18:56
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Ding ding ding, @Dai wins the prize. Immigration control is inherently full of vagary. Any system tight enough to actually stop "the bad guys" will also screw up vast numbers of innocents; any system open enough to allow ordinary people through will never provide full protection. – Foo Bar Mar 06 '17 at 19:59
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@Dai likely based on the assumption that foreign terror attacks don't often occur on US soil anyways- in fact, since and including 9/11, there have been exactly three terror attacks by non-citizens in the United States. – Delioth Mar 06 '17 at 20:27
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@Delioth: If you're counting the 2009 Little Rock shooting in that total, it's worth noting that the perpetrator, Abdulhakim Mujahid Muhammad, was a U.S. citizen as well. As far as I can tell, he would have been allowed in under the new ban—or the old one, for that matter. (The attack is on that list because he was acting at the behest of a foreign organization, al-Qaeda in the Arabian Peninsula.) – Michael Seifert Mar 06 '17 at 22:11
@MichaelSeifert hell, he almost definitely would have been let in- he was born in Tennessee and left on a visa. He'd likely be considered a "permanent resident" of the US. – Delioth Mar 06 '17 at 22:14
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@Delioth If he was born in Tennessee, then he's a citizen of the U.S., unless he had renounced his citizenship at some point. Citizens are not affected by the entry ban; it's not legal to issue an entry ban for citizens. The statute authorizing the President to issue entry bans applies only to 'aliens' (people who are not nationals of the U.S.) and the U.S. is party to treaties that require a country to grant entry to its own citizens. – reirab Mar 07 '17 at 19:16
@Delioth That list isn't complete. Tashfeen Malik (one of the San Bernardino shooters) was not a citizen of the U.S., for example. It's also a bit misleading in that others (Chattanooga, Boston Marathon, etc.) were carried out by naturalized citizens (those not originally from the U.S., but who later moved to the U.S. and eventually gained citizenship.) Yet more (the other San Bernardino shooter, the Orlando nightclub shooter, the Fort Hood shooter, etc.) were first-generation Americans born to foreign parents. Nearly all claimed to be part of or inspired by foreign terrorist organizations. – reirab Mar 07 '17 at 19:30
@Delioth The shoe bomber and underwear bomber were also not U.S. citizens, though neither was from one of the countries covered by the entry ban. These both effectively occurred on U.S. soil, since they were on U.S.-flagged airliners (and at least one was in U.S. airspace at the time.) – reirab Mar 07 '17 at 19:33
@reirab but immigration control does not (with the exception of a handful of airports with foreign preclearance) prevent people from boarding aircraft bound for the US, whether US-flagged or otherwise. Would you consider an attack on a US-flagged airliner that is flying between two non-US airports to be "effectively" on US soil? – phoog Mar 08 '17 at 05:51
@phoog Technically, yes, it is. International law treats an airliner in flight effectively as sovereign territory of the flag nation. Nations through whose airspace it flies (and those were it intends to land) have some ability to apply additional restrictions, but, generally speaking, the cabin is subject to the laws of the flag nation. My understanding is that the same is generally true for ships. At any rate, the intent of both of those cases was very clearly to attack the U.S. – reirab Mar 08 '17 at 07:54
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@reirab technically in one sense, perhaps, but not in every sense. A baby born on a US-flagged aircraft outside the US, for example, does not receive US citizenship by the operation of jus soli. See https://fam.state.gov/FAM/07FAM/07FAM1110.html#M1113. So being "subject to the laws of the flag nation" does not make the craft part of the nation's territory. – phoog Mar 08 '17 at 08:07

score 2 · Answer 3 · answered Mar 08 '17 at 06:27

Two points in addition to those already made:

The new order applies to nationals of the indicated countries. The first order applied (ambiguously, vaguely, and confusingly) to aliens from the indicated countries.
The new order explicitly names six countries; the first order indicated the affected countries by reference to a section of the law that governs the Visa Waiver Program.

Here's the relevant part of the new order, emphasis added:

I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

Here's the analogous part of the first order, emphasis added:

... pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

What exactly is the legal difference (in practical terms) as far as the first point? Are they both precisely defined but different sets; or is it more that one is precisely defined and another is vague wording that can be interpreted any which way? — user4012, Mar 08 '17 at 15:22
@user4012 "aliens from" is vague and would probably have caused the order to fail as "unconstitutionally vague" because it's not possible to determine with specificity who the order applies to. At some point, it was asserted (by a third party, granted) that it applied to those who were "traveling from" those countries regardless of nationality. Is someone born in one of those countries "from" that country? Does the answer change if the person formerly held that country's nationality, or never held it? — phoog, Mar 08 '17 at 16:57