President Donald Trump is preparing to seize on a second chance to make a first impression with the release this week of a new executive order temporarily halting travel from citizens of seven nations he says pose a high risk of terrorism.
The order will form the second thrust of a new administration push to significantly overhaul the shape of the American immigration system, following the release of new memos Tuesday empowering state and local authorities to enforce laws that could eventually lead to mass deportations.
It also marks an important moment for Trump’s vision of an expansive executive presidency as he contemplates other areas of sweeping policy action.
The significance of this new attempt – the language of which is expected as soon as Wednesday – is reflected in the participation of White House Counsel Don McGahn.
McGahn’s office had only a cursory look at Trump’s original order, which was written by transition and policy staff. Significantly, Trump’s key political aide Stephen Miller has had much less to do with the second executive order, sources familiar with the matter said, and the Trump administration was communicating with Republicans on Capitol Hill about the legislation.
Trump’s initial attempt to install a travel ban – one of his fundamental campaign promises – was a disaster, halting the administration’s fast start in its tracks.
The move temporarily blocking citizens of Syria, Sudan, Yemen, Iran, Iraq, Somalia and Libya from entering the US unleashed a weekend of chaos at the nation’s airports, after the hurriedly drafted and poorly implemented order caused confusion among border and customs officials about what it actually meant and which classes of travelers were included.
His order was quickly halted by the federal courts in a first showdown between his strong-arm executive powers and the judiciary – leading Trump to belittle judges on Twitter.
The showdown inflicted an early blow on the reputation of the new White House and claims that Trump’s expertise as a master dealmaker and businessman would make up for his inexperience in Washington and governance as he set about fundamentally transforming America.
Stung by the scorn of the courts and the political world, the White House eventually retreated to plot a new approach – one that is likely to be considerably narrower than the initial version. Permanent US residents, or green card holders, for instance, are expected to be exempted from the ban.
Trump rarely admits an error or apologizes for a misstep. But even he realizes that there is not much he can do but frame a new executive order to satisfy the 9th Circuit Court of Appeals’ decision upholding a stay on the order imposed by a federal judge in Seattle.
“The new order is going to be very much tailored to what I consider to be a very bad decision,” Trump said at a White House news conference on Thursday.
Homeland Security Secretary John Kelly is meanwhile promising that the new attempt to impose a temporary ban to allow for the creation of an “extreme vetting” system promised by Trump on the campaign trail would be a “tighter, more streamlined version of the first executive order.”
It is vital for the credibility of the President and a White House that things go smoothly this time around.
This may be the best, last chance for the administration to establish whether it can write an executive order that can honor Trump’s goals but at the same time not fall foul of constitutional due process rights of travelers trying to get into the United States who might be covered by the ban.
The White House faces a high bar in drafting the new order because its constitutional interpretation has already proven open to being challenged. The 9th Circuit, for example, rejected the administration’s argument that the judiciary lacked the authority to block the travel ban as “contrary to the fundamental structure of our constitutional democracy.”
Apart from the legal minefield the new order must traverse, the Trump White House has huge political credibility tied up in the travel ban.
A repeat of angry demonstrations at airports, with tales of travelers being turned back after getting on planes with what they thought were valid visas, would deal another blow to the new administration.