On ABC's This Week yesterday, George Stephanopoulos asked Stephen Miller, a senior adviser to Donald Trump, about the possibility that the president will issue a revised version of his travel ban aimed at addressing some of the legal concerns it has raised. In response, Miller revised history to brush over the chaos and confusion caused by the half-baked executive order as well as a lingering question about its scope that has played an important part in the legal case against it:
Stephanopoulos: A lot of your allies think the best move would be to replace the current executive order with a new one that exempts legal permanent residents and visa holders who have already been admitted to the country. Are you thinking along these lines?
Miller: Well, the existing order does exempt legal permanent residents, and legal permanent residents were not subject to the travel restrictions.
Stephanopoulos: Well, that was the guidance put out by the White House counsel….It wasn't formally—
Miller: Well, it was the guidance put out by the White House counsel because that was the meaning of the executive order. And that was the same fact that caused the Boston judge to issue the positive ruling that they issued.
Trump's executive order, which he issued on Friday, January 27, suspends the admission of refugees and imposes a 90-day ban on travelers from seven overwhelmingly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Contrary to Miller's claim that "legal permanent residents were not subject to the travel restrictions," green-card holders initially were prevented from boarding flights to the United States, detained after arriving in U.S. airports, and in some cases sent back to the countries from which they had traveled.
"The Department of Homeland Security said that the order also barred green card holders from those countries from re-entering the United States," The New York Times reported that Saturday. "In a briefing for reporters, White House officials said that green card holders from the seven affected countries who are outside the United States would need a case-by-case waiver to return."
The fact that the government was preventing legal permanent residents from returning to their homes (and discouraging others from leaving the United States lest they be stuck abroad) was the biggest objection raised by Republican critics of the order. Given the formidable process required to obtain a green card, legal permanent residents, many of whom will shortly become citizens, can hardly be deemed unvetted, so the security rationale for excluding them was rather mysterious. Criticism of the ban on green-card holders quickly led to a reversal of the policy. "The order is not affecting green-card holders moving forward," Trump's chief of staff, Reince Priebus, declared on Meet the Press two days after the order was issued.
That same day, Secretary of Homeland Security John Kelly announced a blanket waiver for legal permanent residents returning to the United States. "I hereby deem the entry of lawful permanent residents to be in the national interest," he said. "Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations." In other words, green-card holders from the seven banned countries were covered by the terms of the order, but they would generally be admitted anyway, under a provision allowing "case-by-case" waivers "in the national interest."
On February 1—three days after Kelly's announcement and five days after Trump's order was published—White House Counsel Donald F. McGahn II issued the memo mentioned by Stephanopoulos in his interview with Miller. "I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States," McGahn said. "Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals."
As Miller noted, Nathaniel Gorton, a federal judge in Boston who upheld Trump's order on February 3, agreed with McGahn's reading of the order. The travel ban deals with "entry into the United States," Gorton noted. "Upon returning to the United States, lawful permanent residents do not, however, typically 'enter' the country for purposes of the [Immigration and Nationality Act]. Therefore, the use of the term 'entry' in Section 3(c) indicates that the suspension was not intended to be applied to lawful permanent residents."
By contrast, the U.S. Court of Appeals for the 9th Circuit, which last week declined to overturn another judge's temporary restraining order against the travel ban, questioned the authority of McGahn's memo:
We cannot rely upon the Government's contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely. Nor has the Government established that the White House counsel's interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government's shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.
Since McGahn himself called uncertainty about the scope of the travel ban "reasonable," and since the Trump administration initially said that it did cover green-card holders, it seems fair to say the order's meaning remains unclear. It is questionable whether Miller is right that "the existing order does exempt legal permanent residents," and it is clear that he is wrong in saying "legal permanent residents were not subject to the travel restrictions."
This issue is legally important because of all the people covered (or potentially covered) by the executive order, legal permanent residents have the strongest legal claims against it. The Supreme Court has said lawful permanent residents have a right to due process, for instance, when the government tries to stop them from returning to the United States. The issue is politically important because the ban on green-card holders aroused strong objections from members of both major parties, and it is important as a matter of policy because it shows how little thought went into a measure that is supposedly aimed at protecting Americans from terrorists.