https://www.theguardian.com/us-news/2017/feb/12/trump-administration-considering-narrower-travel-ban
Trump powers 'will not be questioned' on immigration, senior official says
A senior White House adviser on Sunday denounced federal judges who have stood in the way of Donald Trump's controversial travel ban, warning that "the whole world will soon see" that the president's executive powers "will not be questioned".
"We have a judiciary that has taken far too much power and become in many cases a supreme branch of government," said Stephen Miller, a senior adviser to Trump on immigration issues, appearing on the CBS program Face the Nation.
"Our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned."
At the same time, Miller signaled that the White House is contemplating a new, narrower executive order to impose its travel ban on refugees and travellers from seven Muslim-majority countries, after a federal appeals panel seemed to suggest that a revised ban could pass legal scrutiny. The original order is temporarily blocked in federal court.
Trump floated the possibility of a separate order on Friday, in a conversation with reporters aboard Air Force One. "We have a lot of other options, including just filing a brand-new order," he said.
"The bottom line is is that we are pursuing every single possible action to keep our country safe from terrorism," Miller said, appearing on NBC's Meet the Press.
On Fox News Sunday, he also appeared to question the courts' powers to check the presidency, arguing that a 1952 law gives a president broad authority over immigration policy. "We do not have judicial supremacy in this country. We have three co-equal branches of government."
Miller did not clarify whether the White House would take its case before the supreme court or test new legal tactics in the lower courts. Many observers expect the White House to seek the emergency intervention of the supreme court.
Miller also denied that any part of the executive order originated with Steve Bannon, saying Trump's controversial chief strategist "has no role whatsoever in drafting executive orders". Bannon was reportedly involved in the chaotic rollout of the ban and partly responsible for the decision to bar green card-holders from entering the US. A full day after the order was signed, the secretary of homeland security appeared to clear green card-holders for entry.
The executive order Trump signed on 27 January prohibited any citizens of Iran, Iraq, Lybia, Somalia, Sudan, Syria and Yemen from entering the US for 90 days, barred all refugees for 120 days, and blocked Syrian refugees from entering the country indefinitely.
Its muddled rollout caused chaos across the nation. Travelers were detained at airports under dubious circumstances, while foreign nationals scrapped plans to visit family or take work trips abroad out of fear they would be barred from re-entry. Worldwide, thousands of individuals who were poised to travel to the US to begin new lives saw their futures put on hold.
A federal district judge in Seattle, James Robart, blocked the major parts of the ban on 3 February, in a ruling that permitted thousands to enter the country. On Thursday, three judges from the ninth circuit court of appeals in San Francisco upheld Robart's ruling. The panel said the Trump administration had presented "no evidence" that citizens of any of the seven countries concerned had carried out a terrorist attack in the US.
Donald J. Trump (@realDonaldTrump)Congratulations Stephen Miller- on representing me this morning on the various Sunday morning shows. Great job!
February 12, 2017
The ninth circuit also rejected the White House argument that the president has "unreviewable authority" to enact immigration policy, amounting to a blank check to restrict travelers from a vast swath of North Africa and the Middle East.
"Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all," the panel wrote.
"The public has a powerful interest in national security and in the ability of an elected president to enact policies," the judges continued, but "the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination."
But the ruling seemed to contain an acknowledgement that the administration could defend a narrower ban.
In oral arguments, justice department attorneys argued that the ninth circuit should at least uphold the ban for individuals who have previously been admitted to the US. The ninth circuit declined to do so, saying "it is not our role to try, in effect, to rewrite the executive order" but adding that "the political branches are far better equipped to make appropriate distinctions".
That line has been interpreted as a tacit admission that Trump has the power to block a smaller group of foreign nationals from entry.
On Fox News Sunday, Miller forcefully defended the ban by citing terrorist attacks committed on US soil "from 9/11 to San Bernardino to Chattanooga". None of those attacks were executed by foreign nationals from the seven countries targeted by Trump's ban.
The attackers of 11 September 2001 were citizens of Saudi Arabia, Egypt, the United Arab Emirates and Lebanon. The husband and wife who carried out a shooting in San Bernardino in 2015 were an American and a visa-holder from Pakistan. The gunman in Chattanooga the same year was a naturalized American citizen, born in Kuwait to Palestinian parents.
The administration's failure to cite any attacks perpetrated by citizens of the countries affected by Trump's ban was central to the ninth circuit's ruling.
"The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States," the judges wrote.
Speaking on Meet the Press, Miller claimed that 72 individuals from the seven countries covered by the ban "have been implicated in terroristic activity in the United States". He cited a new analysis released on Saturday by an anti-immigration thinktank, the Center for Immigration Studies (CIS).
But the individuals on the CIS list, which appeared to have incomplete details, do not fit the description most Americans call up when they think of a terrorist. Only a handful of individuals on the list plotted a specific act of violence on US soil, and one did so at the urging of undercover FBI agents.
The most serious crime committed by a majority of those listed is providing material support to a foreign terrorist organization. More frequently, their crimes consisted of counterfeiting, making false statements to federal officials, or conspiracy to violate drug laws. Such crimes are generally punishable by light sentences. Two dozen received probation, fines, time served or less than a year in prison.
CIS identified nearly half of the individuals on its list as US citizens or legal permanent residents, meaning they would not be prevented from entering the country by Trump's ban.
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