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Courts To Hear Disputes About Whether Trump's Travel Ban Is Constitutional


Today, at least three courts hear different legal challenges to President Trump's new travel order. The new executive order takes effect shortly after midnight on Thursday. The White House changed the order that was blocked in the courts the first time the president tried. The new version is designed to survive a legal challenge. But of course, in a system with a separation of powers, the judges decide if the order is constitutional. NPR justice correspondent Carrie Johnson has been covering this case - or the many cases.

Hi, Carrie.

CARRIE JOHNSON, BYLINE: Good morning, Steve.

INSKEEP: How's this travel order different than the last one?

JOHNSON: Well, the new ban President Trump signed March 6 is much narrower than the original one. This new one applies to six majority-Muslim countries. Iraq is now off the list after a lot of protest from within the Pentagon and the State Department.


JOHNSON: And there is no more exception to favor religious minorities, which the president, at one point, said would privilege Christians over Muslims. And Steve, the new order makes clear the ban does not apply to green card holders, people with valid visas. Those people have more rights than non-citizens who have never traveled here in the past.

INSKEEP: Yeah. Just getting the green card holders off seems to keep out of the order hundreds of thousands of people. So why would refugee groups and the American Civil Liberties Union and a number of states - why would they all challenge the new version?

JOHNSON: Well, the opponents' argument is there's just no legitimate rationale for this travel ban in the first place. President Trump, the attorney general and the heads of the Department of Homeland Security and State all say the executive order will protect national security and help prevent a future terror attack. But they don't have much data to back that up, and they've delayed the rollout of this new order in some cases, by some accounts, to give the president a better chance to soak up good press from his address to Congress.

Perhaps most important to lawyers challenging the new order - it still constitutes, in their view, discrimination on the basis of religion. They're arguing it violates the First Amendment ban on establishing a state religion and the guarantee of equal protection under the law.

INSKEEP: OK. So the executive order, the new version, actually explicitly says - I'm paraphrasing here - this is not discrimination on the basis of religion. It actually explicitly says that. But the challengers are focusing on other statements the president has made over time and the intent. What's the key - what's the importance of the intent here?

JOHNSON: Well, the intent can be used - if it's a bad intent, a discriminatory intent, it can be used to torpedo the entire order, which is what some of these refugee advocacy groups, several states and the ACLU want. They're using the words of the Trump administration against itself. Remember on the campaign trail, Donald Trump talked about a total and complete shutdown of the border for Muslims right after this ban - the initial ban was signed in January. His adviser, Rudy Giuliani, told Fox News that the president had asked him how to make a Muslim ban pass legal muster.

And even after that first order was blocked by the courts, White House aide Stephen Miller told other reporters the new executive order - this one we're talking about today - involved just some minor tweaks, the same basic purpose as before. And now keep in mind - still, Steve, these challengers have a pretty high bar to prevail. That's because the president has a great deal of power at the border, both under federal law and the authority that Congress has delegated him over the years.

INSKEEP: Yeah. He has a lot of latitude to deal with national security to protect national security. And there are a number of laws that emphasize that, on top of which, Carrie, the Justice Department is emphasizing if there is a problem, if we discover there's someone who really ought to be let into the country who isn't let into the country under this travel ban, we can grant a waiver on a case-by-case basis. Why is that not satisfying to anybody?

JOHNSON: Well, that's a big thing for the Justice Department and the administration and proponents of this executive order. But I talked with the ACLU and other advocates yesterday. They say there's still a lot of mistrust here. The same leeway the Justice Department describes as a positive thing, advocates for refugees think could become a very negative one because it's just not clear how Customs and Border Patrol on the ground at airports are going to enforce this new travel ban. That leeway could be used for negative things, as a cover for unlawful discrimination as well as positive ones.

INSKEEP: Could there be chaos at the airports again even though this time there is some notice?

JOHNSON: There is some notice. That will make a big difference. Steve, the International Refugee Assistance Project says it has thousands of volunteer lawyers on call, ready to spring into action this week if the travel ban does take effect Thursday at 12:01 a.m. Eastern Time. They say they're ready to stake out tables at airports and file emergency petitions on behalf of visitors and their families. Recall those scenes from the airports in January and the massive protests. We're just going to have to wait and see how - whether this order, in fact takes effect and what happens next.

INSKEEP: Is it likely that judges will rule before that Thursday, 12:01 date and time?

JOHNSON: It's likely we will have at least one ruling today. At least three different courts in three different states are hearing different kinds of challenges...


JOHNSON: ...To this travel ban.

INSKEEP: OK. That's NPR justice correspondent Carrie Johnson. Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.
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