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[Skift Update: The Wall Street Journal reported that the revised travel ban would cover more than the six Muslim-majority countries targeted to date, and restrict travel to, and visas for, the United States. The details have been sparse pending an official announcement.]
President Donald Trump is on the verge of a fresh clash with business leaders and civil-rights advocates as he faces a critical deadline this weekend for continuing his travel ban on six predominantly Muslim countries.
The president hinted he might broaden the initial ban, which is set to expire on Sunday, in his response to a terrorist attack in London last week. Even mere renewal of the prohibition on entry into the U.S. by most citizens of those nations would reopen controversy over an action that provoked sharp criticism from prominent corporate leaders, multiple court challenges and internal strife within the White House.
Trump may announce his decision on the next step as as soon as Friday, said two administration officials familiar with the process who spoke on condition of anonymity. Neither would describe his leanings among the options, which include extending the temporary ban, expanding the ban or otherwise modifying it, making it permanent or allowing it to lapse.
The Department of Homeland Security sent Trump a classified report last week with details on its review of the vetting process for people entering the U.S., in accordance with the March 6 executive order, said DHS spokesman David Lapan. The report was supposed to include a list of countries recommended for travel restrictions going forward. White House and DHS officials declined to provide details on the report.
Trump’s initial travel ban, imposed Jan. 27, caused confusion at U.S. ports of entry and set off spontaneous demonstrations at airports. It also brought the first major fusillade of criticism of the administration from corporate leaders. Some of the rifts have widened following Trump’s handling of white supremacist violence in Charlottesville, Virginia, and his decision to end an Obama-era policy protecting young undocumented immigrants from deportation.
But Trump suggested after the London attack that the current restrictions on travel to the U.S. don’t go far enough.
“The travel ban into the United States should be far larger, tougher and more specific,” Trump tweeted Sept. 15, hours after a homemade bomb on a city subway injured dozens. “But stupidly, that would not be politically correct!”
The current order bans entry by people from Iran, Libya, Yemen, Somalia, Sudan and Syria who have no “bona fide relationship” to the U.S.
“There could be many, many countries that end up on this list,” said Leon Rodriguez, a former director of Citizenship and Immigration Services during the Obama administration who’s now a partner at Seyfarth Shaw LLP. “That absolutely will open up more lawsuits.”
The Justice Department, the State Department and DHS are all reviewing various options and planning on how to implement the next phase smoothly as Trump weighs his decision, a White House official said.
Trump’s March 6 executive order was the second version of the ban first unveiled in January and quickly blocked by courts. After several legal challenges to the March order, the Supreme Court allowed a partial version of the ban to go forward in June. The court is scheduled to hear arguments on the ban next month.
Administration officials emphasized that the ban was a temporary measure to allow the federal government to develop more stringent vetting procedures for immigrants.
During his presidential campaign, Trump called for a “total and complete shutdown of Muslims entering the United States.”
A broadened travel ban would have implications for a scheduled Oct. 10 argument at the Supreme Court, possibly even prompting the justices to cancel the hearing. The high-court case centers on the existing travel ban, including the part that expires Sunday and a separate provision that suspends refugee admissions until Oct. 24.
The justices are already grappling with whether the case will be legally moot by the time they can rule. A revised travel ban could compound those concerns by superseding the existing rules. The high court could decide that federal trial judges should take the first look at the new policy.
The Supreme Court case “may turn out to be a big dud,” said Marty Lederman, a law professor at Georgetown University. “I think the landscape will be sufficiently changed that it will require either a new lawsuit or, at most, a remand to the district courts in these lawsuits to consider the new rules that will be in place going forward.”
Dismissing the case would let the court at least temporarily sidestep difficult legal questions. Challengers contend the president is overstepping his authority
under the immigration laws and violating the Constitution by targeting Muslims.
“You can see why it might be attractive for the court to not decide the case this term,” said Paul Clement, a lawyer at Kirkland & Ellis who served as President George W. Bush’s top Supreme Court lawyer.
The Trump administration also faces a deadline next week to set its annual target for refugee admissions, before the fiscal year ends on Sept 30. Trump has called for reducing the number of refugees allowed into the country and said this week at the United Nations General Assembly that it was more cost-effective to keep refugees in their home region.
–With assistance from Margaret Talev
©2017 Bloomberg L.P.
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