Will a Constitutionally Questionable Doctrine Save Trump's Travel Ban?

The justices could choose to look the other way because of the plenary power doctrine.


A federal judge in Hawaii recently refused to lift his block on President Trump's revised travel ban. The reason he refused, he said, was because the legal challenge against the ban — which will surely reach the Supreme Court — has a "strong" likelihood of succeeding. But this may be overly optimistic, thanks to the lingering hold of something called the plenary power doctrine, which gives the president and Congress sweeping powers to set immigration policy without regard to the Constitution's usual checks.

If there were ever a case crying for this doctrine to be thrown out, Trump's travel ban would surely be it. The national security rationale that the administration is offering to justify its ban is so pathetically weak that the Supreme Court justices will have to suspend a lot of disbelief to swallow it.

But still, Trump might prevail.

The plenary power doctrine has its genesis in 19th century case law. In a series of three cases, the Supreme Court ruled that:

  • A Chinese worker based in the United States had no right to re-enter after a brief visit to his native country because Congress had changed the rules in the interim (Chae Chan Ping v. United States, 1889).
  • The court would not second-guess political authorities who without due process or an explanation had refused to let a Japanese woman enter so that she could join her husband in the United States (Nishimura Ekiu v. United States, 1892).
  • The government could indefinitely detain, pending deportation, any Chinese citizen living in the United States who had failed to obtain residency permits even if they had committed no other crime (Fong Yue Ting vs. United States, 1893).

The underlying rationale in all these cases was that, in order to protect itself, the government of a sovereign nation like America must be able to exclude any foreigner from its soil without constitutional objections from courts. The only "rights" foreigners are entitled to when it comes to their ability to enter or stay in the country are those that the political branches decide to extend to them. So, actions that might be illicit when applied to citizens are unobjectionable when it comes to foreigners, especially those not living in the United States.

The court doubled down on this rationale during the heyday of the Red Scare. In 1950, it refused to allow Ellen Knauff, the Jewish-German wife of a U.S. army employee fleeing Czechoslovakia, from entering the country. Immigration officials claimed, based on the word of a jealous ex-girlfriend, that she was a spy. In another case, the justices reaffirmed the right of authorities, without explanation or due process, to bar a Hungarian legal permanent resident, Ignatz Mezei, from re-entering, even though he'd lived in America for 20 years. Why? Because he was a union supporter and therefore a likely Communist sympathizer.

Despite such history, most legal scholars believe that the doctrine has softened enough that Uncle Sam could no longer get away with barring from the country legal permanent residents or green card holders except in some very limited circumstances (like if they had been involved in terrorist activity while away). That's why the original Trump order, which wouldn't let even green card holders from seven majority-Muslim countries enter, did not have a prayer of being upheld.

But legal scholars also believe that the plenary power doctrine is still strict enough that tourists, students, temporary foreign workers, and others applying for non-immigrant visas from Trump's new list of six countries can be banned (although Hawaii is challenging even this aspect on grounds that it'll affect the state's tourism industry and universities).

The gray area concerns Trump's efforts to deny foreigners applying for immigrant visas to permanently live in the country. At first blush, it seems strange that foreigners wishing to immigrate to the United States might not be covered by the doctrine when those who want to come here only for a brief period are. But the reason is that, with the exception of refugees, these foreigners are sponsored by family members in America. In other words, letting them come to America is not so much about their rights as the rights of their family members.

Trump argues that he can bar even these foreigners, thanks to the powers that Article II of the Constitution gives him to protect national security. In addition, he claims that Congress delegated him its national security powers when it passed the 1952 Immigration and Nationality Act that authorizes him to ban "the entry of any aliens or of any class of aliens" that is "detrimental to the interests of the United States." And as the court itself noted in Youngstown Sheet & Tube Co. v. Sawyer, when a president acts with his own authority and Congress', there is a presumption of constitutionality in his actions that limits judicial scrutiny.

But Cato Institute's David Bier points out — correctly — that Congress subsequently amended the sweeping authority it had handed by passing another law in 1965 barring any discrimination in the "issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence." So the travel ban is illegal at least from a statutory standpoint because it treads on three of the banned categories.

That would still leave the president his own authority for his executive order, but how much deference does that deserve from courts?

Trump's supporters point to the Supreme Court's 2015 Kerry v. Din ruling and argue "substantial." In it, the five conservative justices upheld the rejection of the green card petition of an American citizen, Fauzia Din, for her Afghani husband who once worked for the Taliban. But here's what they miss: The court did not find that Din had no protected liberty interest at stake, as Justice Anthony Kennedy explained in his concurrence — but only that whatever that interest, it was overridden by the finding that her husband belonged to a terrorist outfit.

Needless to say, vanishingly few people who would be barred under the Trump ban have family members who belong to terrorist outfits. And yet the executive order would prevent them from entering as a matter of blanket policy — not individualized finding, as was the case in Din. This would be an affront to the due process and equal protection rights of these Americans — and potentially the First Amendment's Establishment Clause and the Free Exercise guarantee as well.

Here is the key question: Does President Trump have a strong enough national security rationale to justify such abrogations?

From a purely common sense perspective, that seems laughable. After all, Trump was yammering about a Muslim ban during his campaign before receiving a single intelligence briefing. He repeatedly singled out Islam as an enemy religion. He even asked former New York Mayor Rudy Giuliani how he could enact a "Muslim ban" in a "legal way."

All of this smacks of anti-Muslim animus rather than a genuine national security concern. But Trump is inviting the court to ignore all these statements and examine only the "four corners" of the executive order as per the plenary power doctrine.

That is a lot to ask of a doctrine that has no constitutional basis. Indeed, the Constitution, strictly speaking, gives political authorities only the power to determine the rules of naturalization — not the power to regulate or limit immigration. The court may end up deferring to Trump because second-guessing his bogus national security rationale would open the door for future judicial interventions for future presidents acting from more genuine national security concerns.

But the Trump ban is testing the outside limits of this doctrine. If the court is looking for a reason to discard it, Trump may have handed it one.

This column originally appeared in The Week

NEXT: The United Airlines Incident Does Not Require New Laws, Despite What Chris Christie Says. It Could Have Been Resolved by Intelligent Use of Markets.

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  1. “Everything about this ban is perfectly legal but it’s icky and I hate it so we should use the courts to stop it”

  2. There isn’t anything unconstitutional about Trump’s latest executive order.

    My understanding is that both the judges in question cited Trump’s campaign rhetoric in their decisions–as if that were appropriate.

    Regardless of what you think about Trump, there is nothing unconstitutional in that executive order.

    Just because you don’t like something doesn’t mean it’s unconstitutional.

    There are plenty of unlibertarian things that are perfectly constitutional. It’s like declaring a war. Just because I oppose a war, that doesn’t make it unconstitutional. It just makes it a bad war in my opinion–for my own reasons. If Congress declares war on Syria, all in perfect harmony with their enumerated power as prescribed in the Constitution, then (unless something changes between now and then) I’ll oppose that war–despite the fact that it’s perfectly constitutional.

    I’ll argue that it’s not in our strategic interests, costs too much, there will be humanitarian arguments, etc.

    You can cry wolf and hurt the unconstitutional argument, you know? Go around crying wolf about how unconstitutional perfectly constitutional things are, and you’re gonna wear that argument out. Then what are we going to do the next time there’s an unconstitutional war?

    Find a better argument?

    I say it’s better to find a legitimate argument now than to go around calling this unconstitutional when it isn’t.

    1. “My understanding is that both the judges in question cited Trump’s campaign rhetoric in their decisions–as if that were appropriate.”

      Why isn’t it appropriate?

      When attempting to judge the constitutionality of a law, judges look at “legislative intent” all the time, citing the Congressional record, etc., all the time. Why is it not appropriate to look at the equivalent for the executive branch when evaluating an executive order?

      1. Because under statutorial legal construction, “legislative intent” comes into play only as a last resort.

        The obvious point is that if this order would have been legal for Obama, it is legal for Trump.

        There is also the obvious point that his advisors made a documented effort to eliminate the unconstitutional aspects of his campaign rhetoric.

      2. “Why isn’t it appropriate?…When attempting to judge the constitutionality of a law, judges look at “legislative intent” all the time, citing the Congressional record, etc., all the time.”

        Yes, they look at the conversations that occurred in Congress to try to figure out what Congress intended regarding portions of the law that could be ambiguously interpreted.

        But they don’t look at Congressional campaign rhetoric to figure that out.

        The law (in your example) or the EO say what they say. Something that a candidate says while campaigning that doesn’t make it into the law/EO has no bearing on the constitutionality of the law/EO.

      3. “When attempting to judge the constitutionality of a law, judges look at “legislative intent” all the time, citing the Congressional record”

        If you don’t see the difference between legislative intent and campaign rhetoric, I don’t know what to say.

        The text of the EO is under consideration. Not Trump’s campaign rhetoric.

        If we start declaring constitutional things unconstitutional because of campaign rhetoric, then we’ve really lost our minds.

        1. No, you can’t have it both ways. Either it’s valid for judges to look at statements beyond the text of the law/EO itself in order to judge its constitutionality, or it isn’t. I can see the argument for why it isn’t valid. But I cannot see the argument for why it is valid for Congress but not valid for the President. If examining presidential campaign speeches is invalid for judges to do, then how do you intend for judges to discern the intent of an executive order, *beyond* the text of the EO itself? Presidential deliberations aren’t public, like Congressional deliberations are. Maybe they should be?

          1. Please document for us a case where a court considered something that some Congressperson said while campaigning as a contributor to “legislative intent”.

            You’re ignoring an obvious difference between something done under official authority and campaign blather.

            1. I don’t know if judges have or haven’t examined Congressional campaign speeches. I would be willing to bet that they haven’t, only because they don’t NEED to, there is a documented Congressional record to use instead which publicly states the intent of Congress, which is probably more reliable anyway. But imagine for a moment if there was no Congressional record, and Congress conducted all of its deliberations in secret. What then, in your view, should judges use in order to try to determine the intent of Congress? That is the situation with the executive branch. There is no equivalent to a Congressional record because the President conducts his deliberations with his advisors largely in secret and he is able to protect the confidentiality of his conversations via executive privilege, something that Congress lacks.

              1. Imagine there’s no heaven, it isn’t hard to do.

                In the absence of a Congressional record, the judges would have to judge ambiguities in the law based on the language of the law.

                Which they should be doing with the EO. Are the policies that it promotes within the power of the President as granted by the Congress and the Constitution? Yes or no. That should be the judgement. Campaign speech doesn’t enter into it – and the EO is blatantly contradictory to Trump’s Campaign blathering about a Muslim ban.

                1. You are trying to have it both ways again.

                  So if Congress passes a law that is facially constitutional, but the Congressional record makes it clear that its members intend to do something unconstitutional with this law, then that law should be declared unconstitutional, no?

                  But if the President issues an EO that is facially constitutional, but the President makes it clear that he intends to do something unconstitutional with this EO, but since the President’s deliberations with his advisors aren’t made public and published in a record, the President’s EO should get the benefit of the doubt, his public statements should be ignored – unlike the public statements of Congresscritters which are written down and published in a record?

                  And people wonder how we arrived at the place of an Imperial Presidency. Congress gets punished for having open discussions, the President gets rewarded for having secret discussions.

                  1. “But if the President issues an EO that is facially constitutional, but the President makes it clear that he intends to do something unconstitutional with this EO, but since the President’s deliberations with his advisors aren’t made public and published in a record, the President’s EO should get the benefit of the doubt”

                    No. This President tried one EO that attempted something that was at a minimum contrary to the law and possibly unconstitutional – denying reentry by green card holders. Opponents got TROs and the public shouted it down and rather than fight it they pulled it and replaced it with one that appears to be consistent with the law. The system worked the way it was supposed to work.

                    So what’s your alternative? Since Trump said he wanted to ban Muslims during the campaign he can’t deny any Muslim the ability to enter the US? Not a single one? Because that’s the logical end point of your position. ISIS can give up Raqqa and just come over and set up shop in Little Rock because Trump is a blowhard and therefore has no legal basis to keep them out.

                  2. The congressional record includes statements entered into official record. It does not include campaign promises.

              2. I won’t argue against the idea of more sunshine on presidental deliberations.

                Can you show any precedent for courts looking at a President’s campaign rhetoric in their decision?

              3. If the text of the EO itself is perfectly constitutional, you’re effectively asking to have campaign speech declared unconstitutional by the courts–that’s what you want?

                There are principles I wouldn’t sell down the river just because I don’t like any particular constitutional EO. I think it’s important to keep that in mind.

                Meanwhile, if you think things are bad between average people now and the elitists, just wait until populist candidates can’t give voice to populist concerns for fear that their EOs and laws will be declared unconstitutional.

                You certainly seem to be willing to sell an awful lot of important stuff short just to oppose one perfectly constitutional EO. If you can’t think of a better way to oppose the EO, maybe you shouldn’t oppose it–because there must not be much in the way of good reasons to oppose it.

                The best way to challenge a constitutional EO is to give reasons against it–not to wrongly have it declared unconstitutional.

              4. Maybe because what one’s intent is, is unable to be known for a certainty.
                Judges aren’t supposed to determine the intent of the written word, just the word. Just as would happen if the government was going to have a law enforced.
                The judge relies on what the law says, not what the intent was, thus many a loophole has been used to escape what the legislature had intended to be punishable.

      4. Calling campaign rhetoric “legislative intent” is a yuuuuge stretch.
        Why was his later pull-back to a position of extreme vetting not the “legislative intent” they relied on?
        How far do you think the courts can go in assuring politicians abide by campaign promises?
        Should Trump be impeached because he won’t prosecute HiLIARy as he said he would in the debate?

    2. But I will agree with you and say that too often, “unconstitutional” is just a proxy for “something I don’t like”, and libertarians generally shouldn’t fall into that trap.

      Instead I think a better argument might be, “whether the ban is constitutional or not is largely besides the point. Does it violate the fundamental liberties of either citizens or travelers?” And I think it does, if you believe that freedom of association is a fundamental liberty that all just governments ought to protect, whether that government claims to be bound by a constitution or not.

      1. Foreign citizens have no right to come here.

        1. Many libertarians don’t accept the idea of “foreign citizens”, only “people” all of whom have the right to live wherever they want, regardless. Imagine there’s no countries…

    3. As far as I can see you are right. There isn’t anything unconstitutional about the executive order. Congress has broad powers over immigration policy and they allowed the president to do things like this.

      There is tons of bad policy that is perfectly constitutional. A lot of libertarians put too much onto the constitution. It’s pretty good libertarian-wise, but it’s not a libertarian document and certainly doesn’t make the US a libertarian country (states still have very broad police powers, etc.).

    4. Trump doesn’t get to sell to his base that he got the Muslim ban he promised and then pretend it’s not a Muslim ban to get it to pass constitutional muster.

      If it weren’t a Muslim ban it wouldn’t have any reason to exist. You’re expecting our courts to play deaf and blind.

      1. “Trump doesn’t get to sell to his base that he got the Muslim ban he promised”

        Are you saying Trump isn’t allowed to say things that aren’t true to his base? When did that policy come into effect?

        1. The entire purpose of this action was to fulfill his campaign promise of banning Muslims. I don’t think you can tweak it by any amount and make it constitutional when that’s clearly the single purpose for its existence.

          1. Pretend this law goes into effect.
            A traveler from a land, not included in the ones listed, lets an immigration official know that he is a Muslim.
            Would he be stopped from entering the country?
            If the answer is, even for the galactically stupid, “no”, then where is your “Muslim ban”?
            If all Muslims aren’t denied entry, it cannot be called a ban.

      2. Even you should know that the ban applies to only a few countries that are predominately Muslim. There are far more predominately Muslim countries not affected by the ban and therefore it cannot be a Muslim ban. The great majority of the world’s Muslims can come and go just as they could before the ban.

        1. Meant for Tony, of course.

        2. Meant for Tony, of course.

        3. Are you arguing whether it is a Muslim ban semantically, or whether the order is constitutional?

          Even banning some people because of their religion would be unconstitutional.

          1. Maybe in the Tony imaginary Constitution it applies to people, who’ve never set foot in the country.
            But in the real world, not so much.

      3. It’s not a Muslim ban because most Muslims in the world are still eligible to come to the US just the same as they were before.

        I think it’s a bad policy and Trump is turning out to be even worse than I expected. But if he’s claiming that this EO fulfills a promise to ban Muslim immigration, then he’s lying about that too.

      4. IT’S NOT A TAX!

  3. “Does President Trump have a strong enough national security rationale to justify such abrogations?”

    Do judges get to set national security policy?

    1. Is national security policy beyond judicial review?

      1. Does judicial review include what a judge “feels ” the President meant by something? Or are they just meant to interpret the law?

        The statute is clear in this case. The President can exclude any non-citizen, for any reason.

        The fact is, he didn’t even need to issue an EO to do this. The EO was a political move – a signal to his voters that he’s doing what he said he would do.

    2. No, but they get to decide when it is illegal or violates the constitution.

  4. Only SD would argue that foreign nationals have a constitutional right to enter the US.


    1. Do you have a right to freely associate with individuals of your choice?

      1. Not if they live in a country in which I don’t have the right to enter.

        1. So you don’t have a right to free association, or is it instead that the government which has sovereignty over your associate is infringing on your associate’s freedom of association liberties?

          And if you invite a foreigner to visit you, and your government forbids the visit because your guest is from some forbidden country, then whose rights are being violated here? Answer: YOURS, in addition to your guest’s.

          1. So there should be no effective border controls anywhere in the world? Because that’s what your arguing.

            If my daddy is in prison and I want him at my birthday party and the government says no are they infringing on MY rights?

          2. I agree in principle with what you are saying. But I don’t think that the constitution guarantees the right of association that completely. The constitution specifically allows immigration controls and regulations. Which means excluding some people. It doesn’t specifically protect an absolute right to associate with whomever you want regardless of circumstances. Which means excluding some people.

      2. “Do you have a right to freely associate with individuals of your choice?”

        There are all kinds of groups that you don’t have a right to freely associate with or at least the right is restricted by the government. Soldiers on duty, prisoners, foreigners, etc.

      3. Not when it involves crossing a national border.

    2. I did find that to particularly concerning.

  5. Here is the key question: Does President Trump have a strong enough national security rationale to justify such abrogations?

    Irrelevant. A government action is either constitutional or unconstitutional. Way to go in supporting security statists rational…

    All of this smacks of anti-Muslim animus rather than a genuine national security concern.

    No it does not. I this assertion were even remotely true, the “ban” (i.e. temporary halt on immigration from a few countries) would encompass ALL muslim countries and not a select few.

    1. rationale**

    2. “””would encompass ALL muslim countries and not a select few”””

      If it’s a muslim ban, it would be all muslims from all countries. The country from which they come would be irrelevent because, well, they are muslims and it’s a muslim ban.

      1. This logic thing hurts my head. Can’t we just deal in appeals to emotion?

      2. If it’s a muslim ban, it would be all muslims from all countries.

        True. And I’m pretty sure the word “muslim” does not show up anywhere in the e.o., nor does anything about the demographics of the countries listed, anyway.

    3. Let’s give the Trump administration a little credit. Even they knew that simply banning all Muslims wouldn’t be constitutional (though Trump himself apparently wasn’t aware of this during the campaign when he said that’s exactly what he wanted to do).

      So they tried to placate their stupid racist fans by making a Muslim ban that targeted a select number of Muslim-majority countries and then excluding minority religions from the ban.

      Turns out some of our judges aren’t fucking morons who would let this fool them, though.

      1. Turns out some of our judges aren’t fucking morons who would let this fool them, though.

        “Some judges” need to properly do their jobs. They are there to interpret the law. This means reading the words. And the words have meaning. If the words don’t mean anything (as we found with the last ppaca ruling), then you do not have law.

        1. They are meant to interpret the law but not with any of their higher-reasoning capabilities?

          Every iteration of this order is a thinly veiled Muslim ban–again, the thing he promised many times and that he clearly intends to fulfill here. His exact words were “a total and complete shutdown of Muslims entering the United States.”

          Then he ran to Rudy Giuliani and asked how he could do a Muslim ban legally. Yeah it’s totally possible that they come up with a version that passes constitutional muster. Then it’s just a bit of horrible, counterproductive antiterror policy dreamed up by retards.

          Do you ever wonder why you’re defending something?

          1. Every iteration of this order is a thinly veiled Muslim ban

            Even if this was true, Judges are supposed to read the text and judge it against law and the constitution (supreme law of the land). Anything else, and they are not doing their jobs.

            Do you ever wonder why you’re defending something?

            Not when I am defending the rule of law. Words mean things, laws are composed of words, laws mean things. If words do not mean things, laws do not mean things, and law does not exist.

            1. Every iteration of this order is a thinly veiled Muslim ban

              Funny how that works out when you list the countries sending us terrorists – omitting several key “allies” of course.

            2. Even if this was true, Judges are supposed to read the text and judge it against law and the constitution (supreme law of the land). Anything else, and they are not doing their jobs.

              That’s not true. You just made it up. In defense of one of the ugliest pieces of policy in history. Judges use non-textual evidence all the time, even self-proclaimed textualists.

              1. This is what I said:

                Judges are supposed to

                And non-textual evidence has no relevance on an E.O.’s legality or illegality. The E.O. says what it says, and the law governing it says what is says. There is nothing else to be considered. Don’t like the law? Take it up with your congresscritter.

            3. “”If words do not mean things, laws do not mean things, and law does not exist.””

              Like immigration in general. We suppose to be the only country that allows anyone to walk across the border, especially without reciprocity? They try to make it sould we have horrible immigration laws when we have some of the most relaxed immigration laws in the world.

              You want a lefty to believe in the rule of law again mention gun control. Then words within anti-gun laws suppose to mean what they say.

              1. Our relaxed attitude toward immigration (but tell that to someone trying to gain citizenship) used to be a point of pride for this country before pants-shitting racists took it over.

                Interesting that you bring up gun control in defense of textualism since Scalia, king of textualists, not only relied on a historical interpretation to rewrite the 2nd amendment in Heller, but one that didn’t even exist.

                He endorsed the view that a law’s unconstitutionality had to be clearly demonstrated, otherwise judges must defer to the political branches. Then he went and invented a new 2nd amendment out of thin air, denying the people of DC the law they wanted.

              2. “we have some of the most relaxed immigration laws in the world.”

                This was the exact moment I stopped reading you.

        2. And let’s be clear that there wasn’t actually a ruling on the first amendment, but a temporary stay based on evidence that the due process claim made by the plaintiffs was valid.

  6. To paraphrase Justice Blackstone (whom Scalia cited as an originalist):

    “”the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the [president] to enact it.”

    The president enacted it because he promised his goat-fucking followers that he would ban all Muslims.

    1. Then we agree it is a ban on terrorism and not a ban on religious expression.

      1. Since we’re mind reading now I will submit what sounds to me like a realistic theory.

        -Terrorist groups from Middle East commit horrible acts of terror, terrorize their own countries and commit barbaric atrocities.
        -They do these things professing a theocracy in the name of Islam.
        -You average middle American rube associates a small minority religion (at least in the middle of the US) with the only thing they know about said religion (the shocking and appalling barbarism in the Middle East) and starts using Muslim as a shorthand for terrorist.
        -The want the Trump to take care of terrorists and they hear banning muslims and think it’s a good idea
        -Trump demonstrates time and again he’s is your average say-anything-to-get-elected politician and uses the hook to reel in the votes.
        -Trump enacts ban to (ineffectively) prevent terrorists from coming into the country.

        Just my perspective. When a reasonable person in the south hears “Muslim ban” they think terrorism and they agree with stopping terrorism. It’s not right, or good. And the policy would not even be effective in achieving the goal. While there is I’m sure a racist sliver of the population that does dislike that minority group, your average middle American red-stater is not a rock-throwing hatemongerer. They are at worst scared patriotic people with no sense of nuance or awareness.

        1. That’s dangerously reasonable. Amongst all the Trumptards and TDS that’s infected these pages, you’ve reminded me why I continue to read the comments section here. Thank you.

  7. I’d just like to have heard something is this column about why Obama’s ban was not a problem, or Clinton’s.

  8. A lot of these comments are totally missing the main reason why Trump’s immigration order is Constitutional.

    THE CONSTITUTION DOES NOT APPLY TO FOREIGNERS LIVING OUTSIDE THE UNITED STATES (or outside of US control, such as in a war zone). The US Constitution is not international law, and therefore the laws of each particular country apply to the people inside that country, not US laws. In other words, other countries are allowed to have their own laws.

    The population of the world has no rights to immigrate to the United States, and have no standing to make such a claim. People who already received visas or green cards for the United States have at least some standing (although a little weak), and that’s one reason the original travel order was blocked. But people who simply wish to arrive from scratch have no legal claim on the order whatsoever. That’s why we already discriminate by nationality – for example, Mexicans are not allowed to participate in the visa lottery, visas for North Koreans are scrutinized heavily, while many countries don’t require a pre-approved visa to arrive. Within the United States, this would clearly be discrimination by national origin, but it doesn’t apply to people outside the US.

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