Trump's Latest Travel Ban Is Just As Legal but Not Much Smarter
The president did not need Venezuela and North Korea to make his order constitutional.
It looks like the third time may be the charm for Donald Trump's travel ban, which he revised again on Sunday, dropping Sudan from the list of targeted countries while adding Chad, North Korea, and Venezuela. Yesterday the Supreme Court responded by canceling oral argument in the case challenging the second version of the travel ban, which expires next month. Assuming the Court decides the case is moot, critics would have to start again in a U.S. district court if they want to challenge the latest version, and their legal arguments would be weaker.
The new order, which does not have an expiration date, imposes restrictions that vary by country. The ban on Venezuelan visitors, for instance, applies only to government officials and their families, while the ban on North Koreans, who obtained a grand total of 100 or so U.S. visas last year, has no exceptions. Neither does the ban on Syrians, and the door is closed almost completely for citizens of Chad, Libya, and Yemen. Iranians can still come as students, but not as immigrants, tourists, or business people. Somalis can come as visitors but not as immigrants. Like the second set of travel restrictions, issued on March 6 after the first one led to airport chaos and swift legal challenges, the third one, styled as a "presidential proclamation" rather than an executive order, does not apply to legal permanent residents or current visa holders.
The official rationales for selecting these seven countries are based on the extent to which they serve as havens for terrorists as well as their ability and willingness to share information needed to properly screen travelers. The proclamation describes some governments, such as Iran's and North Korea's, as mainly or entirely uncooperative, while it describes others, such as Chad's and Yemen's, as important allies against terrorism that nonetheless do not currently meet U.S. security criteria. The proclamation says the countries were picked based on a "worldwide review" by the State Department and the Department of Homeland Security that took several months, which makes the process look considerably more rational and deliberative than the one that gave birth to the original travel ban, issued a week after Trump took office.
The addition of Venezuela and North Korea to the list, which has very little impact in terms of visa numbers, is clearly designed to allay the impression that Trump is targeting Muslims. "The fact that Trump has added North Korea—with few visitors to the U.S.—and a few government officials from Venezuela doesn't obfuscate the real fact that the administration's order is still a Muslim ban," says Anthony Romero, executive director of the American Civil Liberties Union. "President Trump's original sin of targeting Muslims cannot be cured by throwing other countries onto his enemies list."
But the argument that the travel ban amounted to unconstitutional religious discrimination was already a stretch, especially since critics conceded that the very same order could have been legal if it had been issued by Hillary Clinton. The constitutional case against the order hinged on Trump's loose campaign talk about banning all Muslims from entering the country. But he never actually pursued that policy, and the latest version of his travel ban, framed in religiously neutral terms and based on a purportedly rigorous security review, seems even further removed from it.
That does not mean the travel ban makes sense as a matter of policy, as my colleague Shikha Dalmia notes in her latest column for The Week. Since 1975, Cato Institute immigration analyst Alex Nowrasteh found, no Americans have been killed on U.S. soil by terrorists from any of the countries targeted by Trump's first two orders. That remains true of the latest list, he reports. "The national security justification for the new order is just as weak as for the original order because it could only have prevented nine terrorists who planned domestic attacks, at the maximum, from entering," Nowrasteh writes. "Since four of the nine terrorists were Iranian students in 1979 who would not have been banned under this order, it's likely that it would have stopped only five terrorists from entering and saved zero lives if it was applied backward in time."
Estimating the cost of the travel restrictions, Nowrasteh counts just the economic benefit attributable to new green-card holders, ignoring the gains from tourists and other visitors. Even on that basis, he says, the travel ban does not pass a cost-benefit test. "If the ban continues to block 25,587 green cards each year for ten years," Nowrasteh writes, "then the total loss in wages to native-born Americans would be equal to about $1.4 billion." Based on a valuation of $15 million per life, he says, "blocking that many immigrants would have to save about 96 lives in thwarted terrorist attacks to be equal to the expected economic damage borne entirely by native-born Americans."