Stephen Miller, a senior adviser to President Trump, said on Tuesday that Trump’s revised Muslim ban isn’t going to look that different from the current one. Rather, the new version will only have “minor technical differences,” potentially leaving it open to the same legal challenges that stymied the original ban.
“Nothing was wrong with the first executive order. One of the big differences that you’re going to see in the executive order is that it’s going to be responsive to the judicial ruling, which didn’t exist previously,” Miller said on Fox News’ First 100 Days. “And so these are mostly minor technical differences. Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to very technical issues that were brought up by the court, and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.”
Miller went on to call the court’s order to temporarily halt the ban “flawed, erroneous, and false.”
On Wednesday morning, the American Civil Liberties Union (ACLU), which was successful in temporarily halting deportations in the initial hours after the ban went into effect, promised that it will continue to challenge the Trump administration in court if the revised ban is similar to the current one.
So then we will have the same basic response. https://t.co/tMTAWYDRWm
— ACLU National (@ACLU) February 22, 2017
Since Trump first passed the executive order temporarily banning immigration from seven Muslim-majority countries and suspending refugee resettlement, there has been widespread confusion and chaos, as well as multiple legal challenges.
One of the main concerns in the legal challenges over the ban has been the question of intent. As ThinkProgress has previously reported, courts have thus far said that the intent behind the ban can be considered in determining whether it is violating the First Amendment’s establishment clause.
Evidence of intent can include things like Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States,” the executive order’s caveat for non-Muslim refugees, and quotes from a Trump adviser who said the order was the result of a conversation about the best way to do a Muslim ban “legally.” If the new ban is only technically different, like Miller said on Tuesday, the question of intent still exists — and there’s no guarantee that the new ban will be withstand judicial scrutiny.
Miller, who served as former communications director to Attorney General Jeff Sessions when he represented Alabama in the Senate, has played a key role in crafting and executing the ban. He is definitely not a lawyer, but in the early hours after the ban, he called up the U.S. Attorney for the Eastern District to give him legal advice about how to defend it in court.
Along with Stephen Bannon, Miller also overruled original guidance from the Department of Homeland Security about the ban and directed that it be applied to legal permanent residents (green card holders) from the seven countries listed in the order.
On Tuesday, White House Press Secretary Sean Spicer said that the administration plans to both fight the legal challenges to the original ban and also introduce a revised ban.