What you need to know about Trump’s revised executive order taking effect Wednesday – and the court cases that could still stop it

Donald Trump signed a new executive order on 6 March, in an attempt to reset the terms of, and the legal fight over, his January order to indefinitely ban Syrian refugees and temporarily ban all other refugees and travel from seven predominantly Muslim countries.

How is the new order different?

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The new order formally cancels the first, and tries to resolve legal problems raised by it. It narrows the countries down to six – Syria, Sudan, Yemen, Iran, Somalia and Libya. It explicitly exempts people with valid visas and green cards from the order, and says that Syrian refugees will not be treated differently than other refugees. Unlike the original, the order also makes clear that US agencies will review case-by-case exceptions.



The new order removes a provision that gave priority to religious minorities in their home countries – a section that opponents linked to the president’s stated preference for Christian refugees – but also defends it, saying: “That order was not motivated by animus toward any religion.”

The order is set to take effect at 00.01am on 16 March, at which point it would, barring challenge, suspend the refugee program for 120 days.

The changes to the order appear designed to limit the legal challenges that can be made against it. While many challengers of the original ban were people with valid visas who had been denied entry or had their visas revoked, those people are now exempted by the ban.

Where did Trump’s first order stand in the courts before last Monday?

The first order was suspended. After chaos at airports and lawsuits nationwide, a federal judge in Seattle ordered a nationwide suspension of the order. Attorneys for the justice department then failed to convince appeals court judges that the ban should be reinstated because of national security concerns. In a unanimous ruling, the three judges acknowledged the president had broad discretion on immigration but rebuked the administration’s claim that it had “unreviewable authority”. The judges also questioned the administration for failing to provide evidence of its national security concerns.

On Twitter, the president told the ninth circuit judges he would “see you in court”, seeming to suggest he would take the case to the supreme court. He did not.

What is the administration’s rationale for the order?

The justice department argues that the order is motivated by concerns for national security. At a press conference, the attorney general, Jeff Sessions, said 300 refugees were currently under counter-terror investigation by the FBI, but he did not say whether those people were from the six countries or whether there were any findings of wrongdoing in those cases. At the same event, the homeland security secretary, John Kelly, recalled the 9/11 attacks, though the hijackers involved in that attack were from Saudi Arabia, Egypt, the United Arab Emirates and Lebanon.

The executive order bases its argument on conditions in the listed countries: the presence of “active conflict zones”, eg in Somalia, Yemen, Libya, Sudan and Syria, and/or a country’s status on the state department’s list of sponsors of terrorism, eg Iran, Syria and Sudan.

In a fact sheet, the administration also claims, without examples, that the US immigration system “has been repeatedly exploited by terrorists and other malicious actors who seek to do us harm”.

The order itself does not claim that people from the listed countries have exploited the US’s immigration system, but says that the expanding presence of terror groups in these countries “increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States”.

What are the ongoing legal challenges to the second order?

The president’s revised order is subject to a number of legal challenges in federal courts. Significantly, at least two of these cases, in Maryland and Hawaii, will see hearings the day before the ban is due to go into effect.

A coalition of Democratic-led states have also joined a revised challenge in Washington state, where the judge who issued the nationwide injunction against Trump’s first ban has been asked to apply the same order to the president’s second iteration.

Central to many of these claims is that Trump’s new order, while revised, contains many of the same constitutional violations as the first. The cases in Hawaii and Washington state make reference to the fact that administration officials have said in public that the second ban is designed to the have the same effect as the first.

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Probably the only ruling made against the revised ban thus far is a narrow order handed down in Wisconsin, which prevented the administration from enforcing the order against a single Syrian family.

With the last order, administration lawyers struggled to make the president’s case that national security was the central issue, and judges expressed frustration with the justice department’s slow, faltering and shifting arguments – which contrast with the claim that the order is urgently necessary. Judges have also, however, expressed willingness to defer to the president on immigration, and the new order has many exemptions that repair glaring weaknesses in the original.

The Cornell law professor Stephen Yale-Loehr told the Guardian last week that the new order would “make it tougher to win in court” against the measure, noting that the government now included paragraphs about security risks of each of the affected countries.

Yale-Loehr also said the narrower scope of the law might make it more difficult for affected people – foreign nationals – to challenge the law in US courts. He said challengers would have to rely on American citizens and businesses, for instance someone who alleged their rights were violated because a loved one was denied a visa, or a company barred from hiring someone.