President-elect Joe BidenJoe BidenJan. 6 panel lays out criminal contempt case against Bannon Overnight Energy & Environment — Presented by the American Petroleum Institute — Democrats address reports that clean energy program will be axed Two House Democrats to retire ahead of challenging midterms MORE promised the civil rights organization, Muslim Advocates, that if elected, he would end President Donald TrumpDonald TrumpTrump goes after Cassidy after saying he wouldn't support him for president in 2024 Jan. 6 panel lays out criminal contempt case against Bannon Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups MORE's “unconstitutional Muslim ban” on day one of his administration.
If he ends the travel ban, it will be because Trump wrote it, not because it is an unconstitutional ban. The Supreme Court rejected those claims several years ago. In Trump v. Hawaii, the Supreme Court held that the travel ban was a lawful exercise of the broad discretion Congress gave the president in §1182(f) of the Immigration and Nationality Act and found no merit in the claim that it was a “Muslim ban.”
What’s more, there may very well be legitimate national security reasons for keeping the ban.
If Biden nevertheless decides to end it, it won’t be the first time the travel ban has been stopped because Trump wrote it. Here, history is instructive.
The travel ban
When a federal district court judge reviewed the second travel ban executive order, he issued a nationwide temporary restraining order on the ground that the parties objecting to it were likely to succeed in establishing that it violates the Establishment Clause of the First Amendment by discriminating against Muslims on the basis of their religion.
But he acknowledged in his decision that the travel ban does not discriminate against Muslims on the basis of their religion —
“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”
Nevertheless, he found — on the basis of Trump’s campaign statements — that the stated secular purpose of the travel ban order was, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.
“Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected. No Supreme Court case — indeed no case anywhere that I am aware of — sweeps so widely in probing politicians for unconstitutional motives.”
Trump v. Hawaii
The Supreme Court found that the Proclamation is premised expressly on the legitimate objective of preventing the entry of nationals who cannot be vetted adequately. It says nothing about religion.
The fact that five of the seven nations in the ban have Muslim-majority populations does not support an inference of religious hostility. The ban only covers 8 percent of the world’s Muslim population, and it is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.
Moreover, the Proclamation is based on the results of a worldwide review process performed by multiple Cabinet officials and their agencies.
As part of this review, DHS, in consultation with the State Department and intelligence agencies, developed an information and risk assessment baseline for the information needed from foreign governments to determine whether individuals from their countries might pose a security threat to the United States.
DHS then requested information from foreign governments that present national security concerns to evaluate their information-sharing practices.
After a 50-day period during which diplomatic efforts were made to encourage foreign governments with deficient information-sharing to improve their practices, eight countries — Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen — were still deficient.
DHS recommended entry restrictions for nationals from these countries.
Trump consulted with his Cabinet members and concluded that these restrictions were necessary to prevent the entry of aliens from countries presenting national security concerns about whom the United States Government lacks sufficient information.
The restrictions are not permanent. The Proclamation requires DHS to re-assess the cooperation of the countries subject to restrictions on a continuing basis to determine whether the restrictions should be continued or can be removed.
Biden should not have promised to rescind the travel ban
The claims he based his objections on had been rejected by the Supreme Court, and he had no way of knowing the real reasons for the travel ban.
He did not have access to the classified information that led to DHS’s conclusion that the travel ban restrictions were needed for national security reasons, and he was not privy to the discussions Trump had with his Cabinet members about whether to accept DHS’s recommendations.
Biden should not terminate the travel ban until he has conducted his own investigation with the resources he will have as president to determine whether it really is needed for national security reasons.
It would be extremely irresponsible for him to terminate the travel ban before he has conducted such an investigation. If he does, he will personally be responsible for any acts of terrorism that are committed by aliens the travel ban would have kept out of the country.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.