"The Trump administration may believe they've written a more palatable ban, but the intent remains the same," said Melissa Keaney of the National Immigration Law Center. | Getty Lawyers refocus attack for Trump travel ban 2.0

Advocates head to court Wednesday to make last ditch-pleas to head off President Donald Trump's revised travel ban without some of their most potent weapons: scenes of chaos as travelers were detained at airports across the country during Trump's first attempt two months ago.

Apparently by design, Trump's narrowed executive order will have its most major impacts in refugee camps, grim hotels where visa applicants wait for appointments at U.S. embassies and in countries hostile to the U.S. or lacking any functioning government at all.


Lawyers pressing the case against the new Trump directive acknowledge the challenge they face in conveying the urgency and immediacy of the threat posed by Trump's redrafted order, set to kick in at 12:01 A.M. Thursday.

"The Trump administration may believe they've written a more palatable ban, but the intent remains the same," said Melissa Keaney of the National Immigration Law Center. "The roll-out may be less rushed or visibly catastrophic than the first one, but allowing more lead time to discriminate doesn't make the discrimination any less harmful or unlawful."

Rolling out the new order without the confusion, delays and deportations that surrounded the first one is clearly a top Trump administration priority — although it is solving a problem that the president has publicly denied exists.

"The roll-out was perfect," Trump told reporters last month last month.

Nevertheless, a senior Department of Homeland Security official pledged last week that the tangible effect of the order in the U.S. will be minimal.

"You should not see any chaos so to speak or alleged chaos at airports," said the official, who spoke on condition of anonymity.

"I know the government is trying to change that narrative," said Mark Doss of the International Refugee Assistance Project.

With Trump's travel ban order revised to exempt those with the closest ties to the U.S., such as permanent U.S. residents and existing visa-holders, attorneys attacking the new order are training most of their legal fire on Trump's repeated campaign trail pledges to enact a "Muslim ban."

Advocates handling the current flurry of litigation playing out in federal courts in Maryland, Hawaii and Washington state are now focusing their arguments even more sharply on claims that Trump's anti-Muslim rhetoric fatally infects any policy moves he makes to limit migration from countries in the Muslim world.

"No matter how far President Trump tries to run away from his initial statements that this was a ban on Muslims and discrimination against Muslims, he can't erase where this order originated," the American Civil Liberties Union's Cecilia Wang said. "I think the administration has actually proved itself incapable of being trusted to carry out this order in a way that doesn't discriminate on the basis of religion."

In new legal filings, Justice Department lawyers say little to defend or deny Trump's provocative campaign trail statements. Instead, they focus on Trump's broad authority over immigration and national security-and they warn against "judicial psychoanalysis" of the president.

"Using comments by political candidates to question the stated purpose of later action is particularly problematic. Candidates are not government actors, and statements of what they might attempt to achieve if elected…are often simplified and imprecise," Justice attorneys wrote in briefs filed in two of the suits this week.

“As the Supreme Court has made clear, official action must be adjudged by its ‘text, legislative history, and implementation of the statute or comparable official act[ion],’ not through ‘judicial psychoanalysis of a drafter’s heart of hearts.’… Measured against these standards, the Order falls well within the President’s lawful authority,” the briefs argue.

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The Trump administration also argues that the redrafted travel ban order is so different from the “complete shutdown” of Muslim immigration Trump touted during the campaign that the new order can’t be an iteration of that promised policy.

The “complete shutdown” promise and “other proffered statements reveal nothing about the Order’s aim, because the Order does no such thing,” Justice lawyers wrote. “Far from banning Muslims indefinitely, the Order temporarily suspends the Refugee Program globally, and pauses for 90 days entry from just six countries previously identified as posing particular risks — both subject to religion-neutral exceptions and case-by-case waivers. There is a complete disconnect between plaintiffs’ imputed purpose and the Order’s actual effect.”

Critics say the halt of refugee admissions worldwide — a feature of both the original order and the revised one — simply shows the length Trump is willing to go to carry out his Muslim ban.

“This refugee ban is designed to keep Muslims out of the United States and the other refugees that will be kept out are basically collateral damage,” said Mark Hetfield of HIAS, a Jewish refugee aid and resettlement group. For this second go-round, the White House is also offering something it refused to give judges the first time: some insight into the policy process that led to development of the order.

To be sure, it’s only a glimpse behind the curtain, but in filings in the Hawaii suit, Justice Department attorneys included a two-page letter Attorney General Jeff Sessions and Homeland Security Secretary John Kelly delivered to Trump last Monday — the same day the president signed the revised order.

The letter describes urgent national security concerns that Sessions and Kelly argue necessitate a halt in refugee admissions and in travel from certain countries.

“We believe that it is imperative that we have a temporary pause on the entry of nationals from certain countries to allow this review to take place — a temporary pause that will immediately diminish the risk we face from application of our current vetting and screening programs for individuals seeking entry to the United States,” Sessions and Kelly wrote.

The two Cabinet officials also alleged some facts the administration is relying on to justify the new directive. “At present, more than 300 persons who came to the United States as refugees are under investigation for potential terrorism-related activities,” Sessions and Kelly wrote. “There are currently approximately 1,000 pending domestic terrorism-related investigations, and it is believed that a majority of those subjects are inspired, at least in part, by ISIS.”

The claims seem intended to rebut assertions by former national security officials, mostly from the Obama administration, that both travel ban orders were not tailored to any known security threat and are actually more likely to trigger a backlash against Americans.

Judges may be reluctant to weigh the competing national security claims, but advocates contend the assertions made by Sessions and Kelly — and by Trump himself in a preface to the new order — are misleading and incomplete.

For one thing, administration officials have declined to comment on how many of the ongoing investigations involve refugees from the six countries targeted in the new order: Iran, Libya, Somalia, Sudan, Syria and Yemen. They’ve also declined to indicate what fraction of the investigations involve recent arrivals versus people who’ve lived in the U.S. for a long time.

Refugee advocates say they know of only two instances where refugees were convicted of terrorism-related crimes. Neither resulted in any Americans being killed, Hetfield said.

Curiously, the FBI was not involved in the public roll-out of either of Trump’s travel ban orders and has declined to verify the figures about the investigations it is said to be conducting.

The State Department also seems to be trying to downplay the impact of the new order. In guidance posted online and submitted to the Hawaii court, officials emphasize that the new travel ban won’t shut down visa appointments the way the last one did and that waivers are available.

“We do not plan to cancel any previously scheduled visa appointments,” State’s Q&A posting says. “After the new Executive Order goes into effect, any individual who believes he or she is eligible for a waiver or exemption should apply for a visa and disclose during the visa interview any information that might qualify the individual for a waiver/exemption.”

The White House has said it is confident the new order will be allowed to take effect, but it’s unclear how much weight to give to that assertion since Trump famously declared on Twitter last month that upholding the original directive “should be EASY D!”

It proved not to be, with about half a dozen judges entering restraining orders or injunctions against parts of the original directive. A three-judge 9th Circuit appeals court panel refused to disturb the broadest injunction, effectively dooming Trump’s first travel ban foray.

Still, some conservative legal scholars predict eventual victory for Trump. They say the law is clear that he has the power to select individual countries and suspend immigration from those nations.

“Presidential power is at its peak when the president acts with the authorization of Congress, and at its lowest ebb when he acts in defiance of Congress,” said Temple University law professor Jan Ting, a top immigration official under President George H.W. Bush. “In this case the president is acting with specific authorization of Congress. End of story.”