The Trump administration’s new travel ban, introduced Monday, remains bad policy, because it will continue to be perceived abroad as anti-Muslim and increase hostility to the United States in much of the world, but it has a better chance of withstanding judicial scrutiny than the previous version.
To begin with, the original ban’s flawed roll-out, with massive and sudden revocations of visas and chaos at many international airports, prompted emergency litigation in many districts. This time around, the administration avoided the terrible atmospherics of that ban by exempting lawful permanent residents, honoring visas that were already issued, and delaying the ban until March 16 so that nobody will be snagged in mid-air.
Second, the administration removed one of the most irrational features of the original ban, its inclusion of Iraqi nationals. A ban on travel by Iraqis, whose forces are fighting with American advisors against ISIS, would likely have been a focus of continued litigation.
Third, the administration eliminated the previous ban’s preference for refugees who were members of religious minorities, widely understood to be a preference for Christian refugees to the detriment of other persecuted groups. That step reduces the likelihood that the ban could be attacked successfully as an unconstitutional establishment of religion.
Nevertheless, legal challenges to the new version of the ban are likely to continue. States such as Washington and Minnesota, which sued to stop the earlier ban, will still have standing to claim harm to their universities and others who want to be able to receive visitors from the six countries listed in the Executive Order.
Their attorneys general will probably press their claim that the Executive Order denies procedural due process by not affording some kind of hearing to those who are excluded and American citizens, universities and other institutions who want those travelers to be able to visit.
That’s a weak argument (despite its traction in the Ninth Circuit Court of Appeals), because it is hard to imagine the content of any such hearing. Would a prospective traveler have to prove in some impromptu American tribunal, located abroad, that although traveling on an Iranian passport she was not in fact Iranian? Would she have to prove that she was not a terrorist? Or would the government have to prove that she was a terrorist? The idea of a hearing in this context seems unrealistic.
A somewhat stronger case against the ban would be that because of President Trump’s campaign advocacy of a ban on Muslims, and Mayor Rudy Giuliani’s statement that a ban on nationalities rather than religions was the legal way to achieve that result, the ban violates the First Amendment.
The Ninth Circuit did not reach that issue, but Judge Leonie Brinkema in Virginia did, restraining the ban as to Virginia residents for just that reason. The issue for the courts will be whether evidence of the intent of the Executive Order can be discerned only by reading the order, or whether the unofficial statements by the president and the mayor can be considered.
The strongest argument against the new ban is that, like the earlier one, it has no rational basis whatever, because as an anti-terrorist measure it has three flaws:
It is over-inclusive, barring young children and aging grandmothers from the six countries as well as fighting-age men.
It is under-inclusive, in that it has no effect on possible terrorists from those or other countries who are already in the United States.
And most important, the stated purpose of the ban is to create a pause so that extreme vetting measures can be established, but the current vetting procedures of travelers are already extreme.
The State Department has told Congress that “every visa decision is a national security decision.” It explained that nearly every visa applicant must have a personal interview abroad, and the screening involves ten-finger fingerprinting and biographic checks “supported by a sophisticated global information network that shares data among the (State) Department and federal law enforcement and intelligence agencies.”
To justify the new ban, the administration would have to show a court, perhaps with classified evidence, that current screening measures are actually deficient.
Whatever the courts decide, the fuss over the temporary travel ban is a distraction from much more far-reaching and dire immigration measures ordered by President Trump in this pronouncement and in his Jan. 25 Executive Orders.
This order continues to reduce the FY 2017 refugee quota from 110,000 admissions to 50,000 admissions. That cut will impose real hardships on tens of thousands of refugees worldwide who could have started new lives in the United States, and it imposes further burdens on countries in Africa and Asia where the refugees currently live in UN camps and substandard urban housing.
It also signals European countries that the U.S. won’t object to the closing of their borders to new refugees. The 110,000 number was negotiated with Congress a year ago, but the administration did not consult with Congress before reducing it, opening the way for a legal challenge.
In addition, millions of undocumented immigrants who are already in the United States will be affected by the president’s two Jan. 25 orders. Those measures make more than half of them “priorities” for removal and put all of the others in jeopardy; expand “expedited removal” procedures to the entire United States; restrict the definition of “unaccompanied” immigrant minors so that most of them can be jailed; require the construction of more immigration jails; and propose to warehouse in Mexico, pending teleconferenced hearings, the Central Americans fleeing gang violence who make no attempt to enter illegally but instead go deliberately to an official southwest border crossing to request asylum.
Those new policies will generate at least as much protest and litigation as the revised travel ban.
Philip G. Schrag is the Delaney Family Professor of Public Interest Law at Georgetown University and the author, with David Ngaruri Kenney, of “Asylum Denied: A Refugee’s Struggle for Safety in America.”
The views of contributors are their own and not the views of The Hill.
This column was updated after publication.