The new executive order may also undermine the Trump administration’s own legal arguments in a few different ways. The first is the exclusion of Iraq from the list of banned countries. One of the Trump administration’s main arguments for the original ban was that its list of countries was based on the Obama administration’s own, identical list of “countries of concern.” “The countries that were chosen in the executive order to protect Americans from terrorists were the countries that have already been identified by Congress and the Obama administration,” Reince Priebus, Trump’s chief of staff, said on “Meet the Press” in January. But now that the list is being altered, that justification no longer works as well. “Iraq being excluded actually undermines the administration’s argument that it was a list that came from Congress,” Bier said.
Second, by narrowing the order so that current visa holders are not affected, the administration undermines its argument that the ban is needed because existing vetting procedures are insufficient to protect national security. Courts could interpret the decision to exempt current visa holders from the new restrictions as an admission that the status quo visa vetting procedures are adequate. “Leaving in current visa holders also undermines the argument that these nationals per se pose a unique threat, and that the current vetting process is inadequate to deal with this threat, which is their whole argument,” Bier said.
Third, by deciding to delay enforcement of the new order until March 16 (presumably to avoid the confusion of the last time around), the administration could undermine its claim that it needs to act quickly. “If the ban were announced with a one-week notice, the ‘bad’ would rush into our country during that week,” Trump tweeted in January. But that’s a tough point to make now. “This undermines the argument that the administration made in court that any delay would jeopardize national security,” Bier said.