As Jacob Sullum noted this morning, President Trump's new 90-day ban on travel from six Muslim countries and his suspension of America's refugee program are in a far stronger position to withstand legal scrutiny than his previous effort. A president has vast discretion in setting immigration enforcement priorities and admitting foreigners so long as he doesn't run afoul of Constitutional due process protections or injunction against religious discrimination etc.
On its face, Trump's new travel ban – unlike his last one – meets this criterion. The ACLU is protesting that the ban is still fundamentally rooted not in national security concerns but prejudice and is looking it over for legal challenge. It will have a harder time prevailing in court, but that does not mean it is wrong. Indeed, the order is mere security theater whose intention is to stoke anti-Muslim fear not make America safer.
For starters, as with the old ban that, like the proverbial drunk who looked for his lost car keys under the lamppost where he could see rather than where he lost them, the new ban too goes after countries that are easy targets, not ones that actually have sent terrorists to America (not that it would be OK to have a blanket ban against innocent tourists or students or other travelers from them either). The countries covered by the ban this time include Iran, Syria, Sudan, Libya, Somalia and Yemen. Iraq, which was in the original ban, has been dropped from the list because, evidently, the Iraqi government has assured the administration that it has adequate vetting procedures in place. With the exception of Iran, what's perverse about this list is that it shuts out the victims trying to flee Islamic terrorism. (And in Iran's case those who want to flee repressive mullahs.)
Indeed, as has been pointed out a gazillion times, these countries may be on America's list of states having a terrorism problem, but it is not one directed at us. On the whole, even among the handful of Muslims in America who've been involved in violent extremism of any kind here or abroad, very few of them have been from these countries and none of these have perpetrated a deadly attack on American soil. According to New America, a think tank compiling information on terrorist activities in the United States since 9/11, 94 people have been killed by jihadists in the past 15 years. But the majority of attackers come from within. The study concluded:
"Far from being foreign infiltrators, the large majority of jihadist terrorists in the United States have been American citizens or legal residents. Moreover, while a range of citizenship statuses are represented, every jihadist who conducted a lethal attack inside the United States since 9/11 was a citizen or legal resident," it says. "In addition about a quarter of the extremists are converts, further confirming that the challenge cannot be reduced to one of immigration." [Emphasis added]
Ironically, the countries that do breed anti-American terrorism such as Saudi Arabia (home of the 9/11 hijackers), Pakistan (San Bernardino shooting duo), Soviet Union (one of the Boston marathon bombers) are conspicuously absent from Trump's list because it would likely upset the foreign policy establishment too much.
But the ban is not merely misdirected it is also overkill. America did not impose anything this extreme even after 9/11. So what exactly is the need now 17 years and trillions of dollars of spending on homeland security later? Attorney General Jeff Sessions muttered something about 300 refugees being under investigation for terrorism by FBI. But it is unclear what that means. The FBI constantly investigates all kinds of activities, not all of them turn out to be actual threats.
In fact, notes Kristie De Pena, Niskanen Center's Immigration Counsel, it is impossible to authenticate Sessions claims because, generally, law enforcement records—including FBI records—are exempted from FOIA requests when untimely disclosure would jeopardize ongoing criminal investigations. Furthermore, in the aftermath of 9/11, that exemption was expanded on a number of grounds to protect national security. So, she notes, there is no way of knowing whether these refugees are from these countries or elsewhere or the nature of the activities they were plotting unless the administration itself offers more details.
If it fails to offer credible evidence of credible threats, it'll be hard to escape the conclusion that the travel ban is simply an exercise in fear mongering. Indeed, not counting Sessions claims, refugees in this country are safer than apple pie.
As I wrote previously, refugees are subjected to such a long, multi-layered and onerous vetting process that it would make more sense for ISIS terrorists to be airdropped by coyotes to gain entry to the country. (I am not saying that this process is fool-proof; nothing can be. I am saying it is involved and fraught enough so as to be useless for prospective terrorists.) Indeed, besides the 2011 indictment of two Iraqi refugees in Bowling Green for providing arms to al-Qaeda, since 1993, only three refugees have turned to terrorism. Trying to reduce these odds to zero before admitting any more refugees would be tantamount to applying the precautionary principle to immigration policy – something that conservatives criticize when liberals use it to justify killing GMOs etc. (Precautionary principle, to put it crudely, means taking no policy action unless it is proven to be 100 percent safe, regardless of the benefits.)
One last thing: The administration is billing this as a temporary ban. But there would be no point in it if it didn't lead to more stringent permanent travel restrictions. Trump's first travel ban was a study in chaos and disruption but it served a useful purpose for him in that it softened the country for the horrid stuff that's he's now pushing.
Update: Over at Volokh Conspiracy, Ilya Somin disagrees with my take and insists that the new order might still be unconstitutional. "The weakness of the security rationale for both the original order and the new one makes it more likely that discrimination against Muslims is the true motive behind it," he notes. "Under the standard legal framework for analyzing such cases, once evidence of discriminatory intent is proven, the government has the burden of showing that it would have adopted the same policy even in the absence of improper motivation. That burden will be extremely difficult to meet in this case."
Furthermore, he notes:
The Trump administration will continue to argue that the courts should defer to its policy and not scrutinize it closely because of the so-called "plenary power" over immigration. It is possible that the courts will be more receptive to such arguments now that the new order exempts green card and visa holders. But such deference would be a mistake for reasons I discussed here and here.
It is also possible that courts would reject lawsuits against the new order for procedural reasons. Previously, state governments obtained standing because of their interest in ensuring that state institutions such as universities could facilitate entry of foreign students. The administration may well argue that things are different if the students in question do not yet have visas. In my view, however, the absence of a current visa should not be decisive. State universities and other institutions still have a strong interest in facilitating entry by new students and employees who might get visas in the future. That may be only a relatively small material interest. But it is comparable to ones under which state plaintiffs got standing in past cases, including the state challenge to Obama's executive action on immigration, which was based on speculative evidence that Texas might have to bear the cost of issuing new drivers' licenses as a result.