Travel Ban 3.0 Would Be Bulletproof If Not for Trumps Remarks
President Donald Trump’s litany of derogatory comments about Muslims before the election might still be enough to sink his latest attempt at a travel ban, although immigration advocates will have a tougher time persuading judges to block it, legal experts say.
Unlike the earlier versions, which targeted several Muslim-majority nations, Trump’s new executive order has the look and feel of a more well-considered presidential directive — the kind that courts generally seek to avoid second-guessing, said Peter Spiro, an immigration law professor at Temple University in Philadelphia. Trump’s comments about Muslims appear to be the only remaining legal vulnerability for the ban, he said.
"If this had been travel ban 1.0, it would have been bullet-proof," Spiro said in a phone call. "The combination of Trump’s anti-Muslim comments and the completely blundering way in which the first order was issued make the new action much more vulnerable than it would otherwise be."
The latest travel ban adds three countries to the list of nations whose citizens face restrictions on entering the U.S., including two — North Korea and Venezuela — that aren’t majority Muslim. Ever since the first ban was issued in January, states and rights groups have claimed in lawsuits that it was an unconstitutional "Muslim ban" that targeted people based on their religion. One appeals court ruled it was "steeped in animus," while another held it ran afoul of a federal law prohibiting nationality-based discrimination.
Adding North Korea and Venezuela is a "thinly veiled" distraction, said Matt Adams, legal director of the Northwest Immigrants Rights Project. “This is just another blatant act of the president throwing red meat at his anti-immigrant base.”
No lawsuits have been filed yet over the third travel ban. But the U.S. Supreme Court won’t hear arguments on Oct. 10 over the previous versions as had been planned. The court told the Trump administration and the ban challengers to file additional papers discussing the effect of the revised policy.
Trump’s comments about Muslims in the years before the election — including in a 2011 interview in which he declared “I don’t notice Swedish people knocking down the World Trade Center” have been at the center of many of the complaints. Plaintiffs groups have also argued that Trump exceeded his authority with regard to immigration.
While the new ban includes restrictions specific to each country, groups like the American Civil Liberties Union, which sued to block the previous bans, can be expected to once again highlight Trump’s comments as evidence that the ban is rooted in discrimination no matter how polished it’s gotten. The new restrictions impact travel to varying degrees from Iran, Libya, Somalia, Syria and Yemen, all of which were on the original list. Chad was also added for the first time.
"With regard to country-specific restrictions, I think that this version of the travel ban is vulnerable to many of the same general legal challenges that the previous versions were," said Hiroshi Motomura, a professor who teaches immigration law and civil procedure at the UCLA School of Law in Los Angeles.
Attorneys are likely to argue that the new executive order continues to violate the anti-discrimination clause of the Immigration and Nationality Act, which bars authorities from rejecting immigrant visa applications on the basis of nation-based prejudice, Adams said.
The Department of Homeland Security did a thorough and comprehensive review of its vetting procedures and established criteria outlining what kind of information and cooperation we need from foreign nations to properly check the backgrounds of aliens seeking to enter the U.S., said Hans von Spakovsky, a lawyer at the conservative Heritage Foundation.
"It is clear that national security and the president’s concern over the safety of the American public is the driving force behind this, and not the meritless claims of supposed discrimination claimed by critics," von Spakovsky said.
Others disagree. The ban provides little value in terms of reducing current terrorism risk, said Robert Pape, director of the University of Chicago’s Project on Security and Threats.
Most terrorism risk in the U.S. comes from people who are "overwhelmingly American-born," and "radicalized in the United States based on overseas propaganda," Pape said.
"The nature of the threat has changed," he said, and has little to do with people traveling to the U.S. from countries involved in the ban.
“Amending this ban does not change what its intent has been since its inception, which was clearly to ban Muslims," the National Iranian American Council said in a statement. "By applying the ban to more people Trump has simply doubled down on his efforts to halt legal immigration, including temporary visits, to the greatest extent possible."
Justin Cox, a lawyer with the National Immigration Law Center, which also sued over the previous bans, said the White House’s decision to expand the ban to non-Muslim countries was a calculated maneuver to undermine the argument that the administration is targeting a religion.
"It just shows how deeply held the animus is if you’re willing to inflict collateral damage on other groups just to justify the ban," Cox said.