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Monday, March 6, 2017

The New Temporary Entry Ban

According to news reports, the President is going to issue a new executive order today to replace the temporary entry ban for people coming from seven countries where terrorism is a problem.  Again, according to reports, the new order will fix most, if not all, of the complaints that the courts raised against the old order.  Green card holders will be excluded from coverage.  Those who already hold US visas will also be excluded.  Iraq will be removed from the list of countries whose citizens are denied entry and placed in a different category with some but not all restrictions.  This will leave opponents with one main argument:  the order imposes a religious test for entry into the USA since the countries to which the ban applies are all predominantly Muslim countries.

How will the new order fare in the courts?  If the reports of the content of the new order are correct, the order will be upheld.  Oh, it may well be that some federal judge or another will issue an order enjoining enforcement; that is a function of which judge gets the case.  There are, after all, some very far left wing judges on the bench.  It is doubtful, however, that any of the courts of appeal would affirm such an order.  The Ninth Circuit might, but the others would not for sure.  If the case made it to the Supreme Court, the President would win even if the new justice has not be confirmed by then.  The Supreme Court would not support interpretation of a clear executive order by considering campaign rhetoric that is contradicted by the order.

The question remains, however, why is the new order needed?  We've now gone over a month since the first temporary order was issued.  The point was to provide safety for the country as extreme vetting was put in place.  Assumedly, that vetting process has been being established as the days have passed.  No rush of terrorists has come into the USA in the interim (unless they are waiting before making their presence known.)  So why do we need a new ban? 

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