Agencies scramble to put travel ban in place
Federal agencies are scrambling to figure out how to implement a limited version of President Trump’s travel ban now that the Supreme Court has allowed it to partially take effect.
Officials are eager to avoid the chaos and confusion that dogged the first rollout of the executive order earlier this year but have to resolve major questions about how the ban will be enforced.
Critics of the order are already warning that there could be a flood of litigation as the U.S. government determines who qualifies for the new criteria outlined by the high court.
“It has opened the door to legal chaos and official overreach in embassies and at the border,” said Nihad Awad, national executive director for the Council on American-Islamic Relations (CAIR).
The Supreme Court said that travelers who lack a bona fide relationship to a “person or entity” in the United States can be barred from entry once the order goes into effect on Thursday. Foreign nationals who can show they have a relationship to a person or entity will be allowed to enter the country.
Some of the examples cited in the decision include individuals who were accepted to a U.S. school or were hired to work for an American company.
The decision allows the administration to block travelers from Libya, Iran, Somalia, Sudan, Syria and Yemen for 90 days, while halting entry for all refugees for 120 days.
Federal agencies are now up against the clock to issue directives that comply with the court’s decision and to clarify how affected travelers can go about proving they have legitimate connections to the U.S.
“The government is reviewing the decision and determining how to proceed going forward,” said White House press secretary Sean Spicer.
The Department of Homeland Security (DHS) said in a statement that it was consulting with the Justice and State departments to hash out the logistical details.
“The implementation of the Executive Order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry,” the DHS said.
There is a lot at stake for the White House in how it reinstates the ban. Any messy fallout or missteps could threaten to derail what was otherwise considered a victory for the administration.
Trump’s initial travel ban went into effect immediately and without advance notice, sparking widespread confusion, chaos and protests at airports around the country. Some travelers and U.S. residents who were caught in transit when the executive order was signed were detained upon entering the country.
The government will have more time to prepare for the policy change this time around — and the travel industry is anxiously awaiting the federal guidance.
“It is absolutely imperative that airlines receive clear and concise information, as well as sufficient time, to enable them to comply with those portions of the executive order for which the injunction was stayed,” said Perry Flint, head of corporate communications for the International Air Transport Association.
“We need to make sure there is proper clarification about who is going to be allowed in the U.S.,” said Patricia Rojas-Ungár, vice president of public affairs for the U.S. Travel Association. “We need to make sure proper guidance is provided to personnel working our borders and to travelers.””
One of the chief questions hanging over the policy is what constitutes a “bona fide” relationship. While visiting parents or siblings clearly fits the bill, visiting a cousin, aunt, uncle or relative by marriage is less clear.
“There is absolutely a gray area,” said Jay Holland, civil rights attorney with Joseph Greenwald & Laake. “The issue of who has a bona fide relationship or familial relationship certainly appears to be an open and confusing question.”
There appears to be even less clarity about what qualifies as a connection to an institution, business or organization, which means the issue could be up for debate and thus open the government up to legal challenges.
“Could you come if you were trying to open up a business?” said Gadeir Abbas, senior litigation attorney for CAIR. “Really, what this does is embolden those in the bureaucracy to exercise their vast discretion in a way that discriminates against and excludes Muslims.”
Legal experts also say that the government could run into problems in trying to obtain proper documentation from foreigners who are trying to prove that they meet the necessary criteria.
“Paperwork from various countries might be difficult to decipher, and the way relationships are described culturally and by way of language are going to vary greatly by country,” Holland said.
Requiring officials to differentiate between travelers who have a connection to the U.S. and those who don’t could open the door to lawsuits, according to legal experts and critics.
Three of the justices dissented from the Supreme Court decision on Monday, predicting that the policy carved out by the court would prove “unworkable.”
“Today’s compromise will burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country,” wrote Justice Clarence Thomas, who wanted the administration’s travel ban to be implemented fully.
“The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship, and whether the claimed relationship was formed ‘simply to avoid’ [the executive order].”