NEARLY a month after promising the Ninth Circuit Court of Appeals in a tweet he would “SEE YOU IN COURT”, Donald Trump has staged a lawyerly retreat from his addled executive order of January 27th. On March 6th the president revealed a fresh attempt to “protect the nation from foreign terrorist entry”. The new order retains the original order's core—limiting access to America’s shores for people from several Muslim-majority countries, and putting the refugee programme on hold—but has been softened in four key ways.

First, the order exempts America’s lawful permanent residents—“green card” holders—from any travel restrictions. (The original order barred permanent residents visiting any of the banned countries from returning to the United States.) Second, whereas the first travel ban was implemented at the stroke of the presidential pen—causing chaos and confusion for people on flights to America when Mr Trump signed the order—the revision will not take effect until March 16th. Third, the revised order applies only to future visa applications, not to people already holding valid visas—or who manage to secure one in the next nine days. Fourth, the list of seven banned countries has been whittled down to six: Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraq has been struck from the list in response to arguments from the State Department and the Pentagon that many Iraqis are active participants in the war on the Islamic State. “[T]hose Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS”, the order says, “have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States”. This alliance, together with Iraq’s enhanced vetting procedures in recent weeks, “justif[ies] different treatment for Iraq”.

One of the legal troubles with the first travel ban seems to evaporate with this edited edition: the complaint that the order violates the Due Process Clause of the Fifth Amendment. This apparent constitutional infirmity played a central role in the Ninth Circuit’s refusal to lift an injunction against the ban. By roping lawful permanent residents out of the country just because they happened to be traveling in a targeted nation, the Ninth Circuit reasoned, the Trump administration may have denied a class of people “notice and a hearing”. With ten days’ notice and by lifting restrictions on green card holders, Trump’s team of lawyers has probably immunised the new executive order from a Due Process challenge.

Another potential constitutional roadblock is likely to plague Mr Trump’s new release, however: the claim of religious discrimination. The First Amendment prohibits the government from favouring one religion over another, and the Equal Protection Clause of the 14th Amendment bars it from discriminating on religious grounds. In its February ruling, the Ninth Circuit noted that “numerous statements by the president about his intent to implement a ‘Muslim ban’” and evidence that the first order “was intended to be that ban” constituted a plausible case against the travel rules. “[E]vidence of purpose beyond the face of the challenged law” is fair game, the Ninth Circuit noted.

In a clear signal that Mr Trump’s lawyers understand this embarrassing pedigree as a stumbling block, they struck a key line from the January 27th order: a sentence permitting refugee applications from minorities (that is, Christians) who have been subject to “religious-based persecution”. The new executive order contains language insisting that this conspicuous deletion should not be misinterpreted. The original line “did not provide a basis for discriminating for or against members of any particular religion”, the order reads, and “was not motivated by animus toward any religion”. This has the flavour of protesting too much. The thumbprint of Mr Trump’s campaign promise to ban Muslims from America (a call that remains on his website) will continue to mar his most-refined-to-date plan and is certain to give rise to new lawsuits. When courts ask whether the second go at a travel ban amounts to unconstitutional religious discrimination, Mr Trump’s press releases, speech transcripts and tweets will all be entered into the record as evidence of the ban's true purpose.

The original travel ban had a related problem the new order does not quite correct: the lack of a lucid explanation of why the restrictions serve the cause of national security. The new order does include a few sentences for each targeted country (drawn from a June 2016 State Department report) purporting to “demonstrate why their nationals continue to present heightened risks to the security of the United States”. But the edit has the flavour of a student essay whose first version contained no support for its thesis and has been patched up with a visit to a couple of websites. The logic behind categorical bans from particular nations remains dubious. Though Iraq is now off the banned list, the order says Iraqis “should be subjected to additional scrutiny” to ensure they have no ties to “ISIS or other terrorist organisations”. Courts may wonder why such a standard should not apply for people from Iran, Libya, Somalia, Sudan, Syria and Yemen as well.