By Josh Gerstein
June 14, 2017
President Donald Trump modified the timing of his travel ban executive order Wednesday in an apparent bid to bolster his chances of persuading the Supreme Court to revive the embattled measure.
The most controversial provision in Trump’s order—a 90-day ban on issuance of visas to citizens of six majority-Muslim countries—was set to run out Wednesday. And a 120-day halt Trump ordered to the admission of refugees was set to run out next month.
However, because of injunctions, neither of the provisions took effect. Some opponents of the measures have argued that the legal disputes were moot or would be soon because of the time limits in the March order.
So, Trump issued a presidential memorandum Wednesday declaring that the controversial provisions will kick in 72 hours after the court injunctions are lifted—if they ever are.
“To the extent it is necessary, this memorandum should be construed to amend the Executive Order,” Trump wrote.
The White House released the document at about the same time the Justice Department submitted new legal filings to the Supreme Court, asking the justices to take up the validity of the purported anti-terrorism measure and to let the order take effect while the litigation continues.
In the submissions, Justice Department lawyers said critics were misreading Trump’s order. The “common sense” reading was that the 90-day and 120-day provisions were on hold and would kick in when the injunctions were lifted, the government argued.
Nevertheless, Trump issued the clarification Wednesday indicating that he wasn’t just allowing the order to peter out.
“If any doubt existed on that score, the President has resolved it in his memorandum clarifying and amending the relevant provisions of the Order,” Acting Solicitor General Jeff Wall wrote in a new brief. “The government’s challenge is not moot.”
“Now that Trump has [issued the clarification,] there is no question that this case presents a live dispute and that a stay would provide meaningful relief,” Wall added in another filing.
The White House had no official explanation for the change, but an administration official said the move should bring greater clarity to the legal fight.
“The memorandum confirms that the various time periods in enjoined provisions of the EO…do not start until the injunctions are lifted,” said the official, who asked not to be named. “As DOJ has explained, that understanding is clear from the text of the EO and common sense – a time period can’t end before it begins. But this memorandum eliminates any question on that issue and allows DOJ to focus on the real issues in the case.”
The White House took a different tack in clarifying the March travel ban order than it did after Trump’s first order on the subject, issued in January. After disagreement arose about whether that first order covered permanent U.S. residents, White House Counsel Don McGahn issued a memo saying it did not.
Some federal judges later questioned the validity of that exercise. They contended there was little authority for the president’s lawyer to modify or interpret an executive order without another formal action by the president himself.
Trump eventually did just that, issuing a redrafted order in March in a bid to get out from under a broad injunction a federal judge in Washington state issued against the first travel ban order.
Just before the revised order was set to take effect in March, a federal judge in Maryland blocked the visa ban, while one in Hawaii blocked the visa ban, the refugee halt and other provisions.
Two federal appeals courts—the 4th Circuit and the 9th Circuit—have turned down the Trump administration’s requests to lift those injunctions.
The Supreme Court is expected to act next week on the federal government’s stay requests and perhaps to indicate whether and when the justices will hear arguments on the legality of the travel ban policy.
Josh Gerstein is a senior reporter for POLITICO.
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