Donald Trump signed a revised version of his infamous travel ban Monday morning. The new executive order excludes one country from the original ban – Iraq, which the administration says has implemented new vetting measures since the first order was written – and exempts legal green card holders, among other tweaks.
The changes come after multiple courts declared the original executive order unconstitutional. But according to Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, despite the changes rolled out Monday, the new order is just as unconstitutional.
“We believe the new order continues to be based on religious discrimination,” Gelernt tells Rolling Stone. “That was the core problem with the first executive order and remains a serious problem with this executive order.”
The ban was “narrowed in light of the court decisions, but it wasn’t narrowed sufficiently to eliminate the constitutional problems,” Gelernt says. The new changes don’t go into effect until March 16th, but the ACLU will be in court before then to try to keep the current injunctions in place.
One of the most glaring legal issues with the original order – the likely reason former acting Attorney General Sally Yates said the Department of Justice would not defend it in court – was that both the president and his advisers made public statements implying the ban was religiously motivated.
During the campaign, Trump famously called for “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Trump adviser Rudy Giuliani said the president asked him to help write an order that wouldn’t appear discriminatory. “When he first announced it, he said, ‘Muslim ban,'” Giuliani told Fox News in January. “He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.'”
The administration has tried to argue that the ban is targeted toward countries that lack the capability to properly vet travelers before they reach the United States.
“All of the statements leading up to the issuance of the first executive order, as well as statements made after, reveal that this is a Muslim ban, period,” Gelernt says. “The fact that the government has tweaked the language in the second executive order does not eliminate that discriminatory taint.”
The courts, Gelernt says, look not just at the document itself, but the context around it, including statements like the ones Trump, Giuliani and other advisers made about the order’s intent. “When you look at those statements in context, it’s difficult to conclude that the intent was anything other than to ban Muslims,” he says.
“The administration is clearly trying to change the narrative and say that the order is constitutional now in light of these tweaks,” Gelernt says. “It’s incumbent on us to make clear to the public that the core constitutional problem of religious discrimination remains. I think the public will see these tweaks for what they are: an attempt to do an end-run around the courts without really eliminating the constitutional problems.”
Watch Attorney General Jeff Sessions unveil President Trump’s revised travel ban.
After a California appeals court declared the original order unconstitutional in early February, the Trump administration asked the Department of Homeland Security to compile an intelligence report providing a rationale for banning travel from these specific countries. The subsequent report refuted the premise of the executive order, saying that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”
A second report leaked to MSNBC last week doubled down on that assessment, adding that “most foreign-born, US-based violent extremists [are] likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.”
Gelernt says the reports dovetail with affidavits the ACLU and its co-plaintiffs submitted on behalf of high-ranking national security experts and diplomats from both Democratic and Republican administrations who said the ban would be counterproductive to anti-terrorism efforts. The leaked reports only reinforce their points, Gelernt says.
“The administration’s own experts are now saying that a ban is not the proper way to further our national security,” he says, “and I think we will see that DHS report in court cases.”