Due Process

Trump's New, Less Objectionable Travel Ban Expected Today

The order reportedly exempts visa holders and Iraqis as well as legal permanent residents.

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C-SPAN

President Trump is expected to issue a new version of his travel ban today, revised to address some of the concerns raised in litigation challenging the original executive order. The New York Times reports that the new order will not cover legal permanent residents of the United States, travelers who have already obtained visas, or visitors from Iraq, which was one of seven Muslim-majority countries whose citizens were banned from entering the U.S. for 90 days under the original order. According to the Times, the new order also eliminates the distinction between refugees from Syria, who were banned indefinitely under the original order, and refugees from other countries, who were banned for 120 days. These changes make the order more legally defensible, less disruptive, and less patently unfair.

According to the Supreme Court, green-card holders have a right to due process when the government tries to stop them from returning to their homes after traveling abroad. It is less clear whether other foreign nationals authorized to live in the country, such as students at American universities and employees of American companies, have viable due process claims, or whether U.S. citizens who have relationships with them might. But in all of these cases, the original order gratuitously upended the plans of people who had already been vetted and had every reason to believe they would be allowed to enter or re-enter the United States. In hundreds of cases, the travel ban stopped people with valid visas who were already en route to the United States, causing needless anxiety and uncertainty. Critics of the order, including many Republicans, emphasized the unfairness of pulling the rug out from under people who were already legally living in the U.S. or had received permission to do so.

Removing Iraq from the list of banned countries addresses another aspect of the order that was commonly highlighted by critics, especially Republicans: People whose lives were endangered by the assistance they gave American forces in Iraq suddenly could no longer count on special immigration visas giving them safe haven in the United States. The decision to let Iraqis continue to enter the U.S., supposedly justified by assurances from the Iraqi government about vetting procedures, conveniently eliminates this objection.

Although critics will continue to question the wisdom and morality of suspending the refugee program (and of dramatically reducing the cap on refugees once the program resumes), Trump clearly has the legal authority to do so. Applying the suspension equally to all refugees weakens the argument that he is discriminating against Muslims in that part of the order. The travel ban still primarily affects Muslims, since the populations of the six countries it covers (Iran, Libya, Somalia, Sudan, Syria, and Yemen) are overwhelmingly Muslim. But it is not literally a "Muslim ban," since it allows the vast majority of the world's Muslims to continue visiting the United States. Hence any charge of anti-Muslim discrimination, whether it is framed as an equal protection, Establishment Clause, or religious freedom claim, hinges on statements Trump or his advisers made that arguably illuminate the motives behind the order.

The U.S. Court of Appeals for the 9th Circuit, which upheld a temporary restraining order against the travel ban, firmly rejected the Trump administration's argument that courts should look only at the order itself and avoid speculating about the president's motivation for issuing it. But the evidence on that point is ambiguous. During his campaign Trump repeatedly talked about banning all Muslims, but that is not what he ended up doing. "When he first announced it," Trump adviser Rudy Giuliani said on Fox News in January, "he said 'Muslim ban.' He called me up, he said, 'Put a commission together. Show me the right way to do it legally.'…What we did was we focused on, instead of religion, danger: the areas of the world that create danger for us. Which is a factual basis, not a religious basis." You can read that explanation to mean that Trump's order is a Muslim ban in disguise, or that it is not a Muslim ban at all.

Trump has offered a nondiscriminatory rationale for picking the seven (now six) countries he did: They had all been identified as havens for terrorists or state sponsors of terrorism. If that is the standard, of course, the list is incomplete. In any case, it is arguably the wrong standard, since people from the countries covered by the order have accounted for only a small share of domestic terrorist activity (and zero deadly attacks) in the United States since 1975. Still, it is a standard that has nothing to do with religion per se, and it is probably enough to satisfy any court that gives the president the benefit of the doubt when he claims to be protecting national security, as courts tend to do.

Whether Trump's order actually will do anything to prevent terrorist attacks in the United States is another matter. The suspect logic of the travel ban, the haphazard manner in which it was written, and the haste with which it was imposed all suggest he was mainly interested in seeming to do something about a threat he has consistently exaggerated. But that motivation, unlike hostility toward Muslims, does not make the order illegal.

Update: The text of the new order is here.

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  1. They’re selling this as a temporary ban necessary so that screening may be improved and if that is truly the primary motive and this is rational exercise in executive authority then should we expect for an adjustment of the 90 day and 120 day numbers to reflect the time that’s passed since the first ban was issued?

    1. No, you should not expect that.

      1. Math is hard.

  2. Here is an article that looks at the nationalities of terrorists convicted in the United States since 9/11:

    http://viableopposition.blogsp…..eland.html

    It’s interesting to note that the nations included in the ban actually supplied slightly more terrorists than a single nation that is considered one of America’s allies in the region.

  3. Inside Trump’s fury: The president rages at leaks, setbacks and accusations

    The president has been seething as he watches round-the-clock cable news coverage…. Stories from Breitbart News, the incendiary conservative website, have been circulated at the White House’s highest levels in recent days, including one story where talk-radio host Mark Levin accused the Obama administration of mounting a “silent coup,” according to several officials.
    Stephen K. Bannon, the White House chief strategist who once ran Breitbart, has spoken with Trump at length about his view that the “deep state” is a direct threat to his presidency.

    Wait till he finds out that the strawberries are missing.
    https://tinyurl.com/zjutmm3

    1. “Who ate all my fuckin’ almonds? Bannon, was it you, you fuck?”

      1. Bannon strikes me as more of the Hamburglar type.

    2. I think the guy playing Kramer took the box of raisins.

  4. Trump’s New, Less Objectionable Travel Ban Expected Today

    And it’ll be the best ban on travel. The Best. Believe me.

    1. If the “deep state” doesn’t crawl out from under his bed and sabotage it.

  5. Keep the wars flaming, then ban the refugees. We Americans have quite an attitude.

    1. The buck stops at Obama.

    2. How can we bomb them if they hide in the US?

    3. You sound like the kind of guy who probably thinks 9/11 was sort of justified.

    4. Who’s “we,” kemosabe?

  6. Re: Rep. Devin Nunes (R) “Move Along, Nothing to See”.

    New polling shows that a large majority of Americans support the appointment of a special prosecutor to investigate Trump’s ties to Russia. Your opinion on that question should be informed by the Sessions Scandal. It’s prefectly clear that a Nunes’ lead investigation would not have undercovered the Sessions misrepresentations. You’d be a fool to expect a credible investigation from Nunes.

    1. So why is it wrong for an individual who ran an international business to have ties to foreign counties?

      1. Think of it like this. When you have financial ties to the mafia and then that mafia sabotages your political opponent to hepp you win an election then that gives us a good faith basis to further expore the nature of your relationship to the mafia.

        1. Wikileaks isn’t Russian.

    2. Give it up buddy. We now know that the real reason for all this “Russian influence” bullshit is to justify and provide a pretext for Obama’s Nixonian wiretapping fetish.

      1. That accusation makes the case for a special prosecutor even stronger.

    3. Well, it’s up to an Obama appointee to decide whether or not to appoint a special prosecutor.

      1. I hope he does but I think that dude is more of a career bureaucrat type and there’s probably some unwritten rule among those types about not deciding these types of quasi political questions. I think we may need a few Republican politicians to agree to the special prosecutor first.

  7. “do anything to prevent terrorist attacks in the United States ”
    This was the same rationale given by a woman air traveler who was asked by a tv reporter to comment on the new, more invasive pat-downs by TSA. She was fine with it. I practically shouted at the tv: “You dumb bint, suppose we strip you down naked every time you showed up for your plane? That would be even more effective wouldn’t it?”
    (p.s. – she was much more attractive than Lena Dunham, so fellow travelers may not have objected.)

  8. We should adopt the same immigration policies as Canada.

  9. No SA on any travel ban = instant fail.

  10. Donald Trump visits students and teachers at St. Andrew Catholic School in Orlando yesterday check it out here

    http://www.lawsonjamesblog.com…..s-and.html

    1. No thanks.

  11. “Whether Trump’s order actually will do anything to prevent terrorist attacks in the United States is another matter.”

    Reasonable and honest people can disagree about the wisdom of any particular policy.

    Violating people’s due process rights is unconstitutional–and that cannot be okay.

    I wonder if Dalmia appreciates that difference between them?

    Last week she argued that deporting illegal immigrants was like enforcing the Fugitive Slave Act of 1850. Once you’ve gone that radical, constitutionality becomes an irrelevant nuance.

    Constitutionality should never be an irrelevant nuance to libertarians–not so long as we have the Bill of Rights, separation of powers, etc. in the Constitution.

    1. How quaint.

    2. Did Dalmia write this article, or do you have DDS?

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  13. RE: Trump’s New, Less Objectionable Travel Ban Expected Today
    The order reportedly exempts visa holders and Iraqis as well as legal permanent residents.

    This is shocking.
    Trump the Grump on the right track?
    What next?
    Repealing Obamacare and deregulating the healthcare (and other) industries?
    Nah.
    That would be going to far.
    Never let the unwashed masses a choice.
    That would be un-American.

  14. Although critics will continue to question the wisdom and morality of suspending the refugee program (and of dramatically reducing the cap on refugees once the program resumes), Trump clearly has the legal authority to do so. Applying the suspension equally to all refugees weakens the argument that he is discriminating against Muslims in that part of the order. The travel ban still primarily affects Muslims, since the populations of the six countries it covers (Iran, Libya, Somalia, Sudan, Syria, and Yemen) are overwhelmingly Muslim ????? ?? ??
    ????? ???? . But it is not literally a “Muslim ban,” since it allows the vast majority of the world’s Muslims to continue visiting the United States. Hence any charge of anti-Muslim discrimination, whether it is framed as an equal protection, Establishment Clause, or religious freedom claim, hinges on statements Trump or his advisers made that arguably illuminate the motives behind the order.

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