The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, Donald Trump issued a revised executive order temporarily barring entry into the US by citizens of six Muslim-majority nations. The new order replaces an old one that was repeatedly rejected by the courts. The new order is less bad than the old one in some crucial respects. But it is still indefensibly cruel, and still unconstitutional for many of the same reasons as the original.
The new order does improve on the original in several significant ways. It exempts legal permanent residents and people who have previously been issued visas. The nation of Iraq is exempted from the order entirely, which now applies only to six nations instead of the original seven. Instead of being excluded indefinitely, as before, citizens of Syria are now banned only for 90 days, like those of the other five nations still covered.
[interstitial_link]Trump's new travel ban is as arbitrary and senseless as the first[/interstitial_link]
Despite those improvements, the order still inflicts cruel harm on refugees and others, while creating little if any security benefit. Most notably, the new order still cuts the total intake of refugees for fiscal year 2017 from 110,000 to 50,000. This part of the order is unlikely to be struck down by the courts. But it deserves emphasis nonetheless, because it consigns many thousands of refugees to misery and the risk of death without even a minimally plausible security rationale. The reduction applies to all refugees from anywhere in the world, regardless of whether there is any reason to think they might be security risks or not. The same point applies to the order's suspension of all refugee admissions for 120 days. That period of time may not seem very long. But for many refugees, it might mean the difference between life and death. Refugees awaiting admission to the US and other Western nations often live in dangerous refugee camps, or even worse. The fact that these parts of the order probably cannot be successfully resisted in court does not make them any less cruel and unjust.
With regard to the legal issues, the revised order's exemptions for legal permanent residents and visa holders make it less vulnerable to challenge on the Due Process Clause grounds at issue in the Ninth Circuit Court of Appeals ruling against the initial order. That decision emphasized the rights of these two groups.
But the revised order remains vulnerable on the ground that its real purpose is religious discrimination against Muslims, which was the basis for the most recent trial court ruling against the initial order. Like the original order, the new one is still clearly an outgrowth of Trump's advocacy of a "Muslim ban," as admitted by Trump adviser Rudy Giuliani, who played a key role in drafting the first order. Courts have repeatedly - and correctly - ruled that Trump and Giuliani's anti-Muslim statements are relevant to assessing the constitutionality of the original order.
[interstitial_link]The new travel ban: A retreat and a concession to reality[/interstitial_link]
The same should be true of the new order, as well. The new order is clearly an outgrowth of its predecessor, and still targets all the same Muslim-majority nations, with the exception of Iraq. The security rationale for the order remains laughably weak. Indeed, the risk that any given American will be killed by an immigrant terrorist of any kind is much lower than the risk that he will be killed in a lightning strike. The total number of Americans killed by immigrant terrorists from the nations covered by the travel order is zero, though a very small number have made unsuccessful attempts.
By singling out citizens from these countries for exclusion, Trump's order may well actually increase the risk of terrorism, because it disincentivizes citizens of those nations from cooperating with US forces. That danger is reduced by the decision to drop Iraq from the new order and to make the exclusion of Syrians temporary rather than indefinite. But Syrians and citizens of other nations who cooperate with US forces still have reason to worry. The administration might try to extend the 120 day period after it ends. And even 120 days might be a long time for those in fear for their lives. More generally, even a temporary categorical ban on entry by citizens of those nations likely alienates public opinion there, and makes cooperation with American forces less likely.
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. 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.
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.
While Trump's revised order is still both cruel and unconstitutional, it is a positive development in one crucial respect: the very fact that he had to withdraw the original order and issue a new one shows that the administration is not immune to legal and political resistance. Because the initial order attracted strong public and judicial opposition, Trump concluded that he had to back down, at least partially. That was an important victory, both for its own sake, and for what it may portend for the future. Opponents of the order and Trump's other immigration policies should do all they can to keep up the pressure.
UPDATE: Benjamin Wittes makes some good points about the new order in a post at Lawfare. He argues that the revised order is still "terrible policy" and still the result of "improper motivations," But also that it will be much more defensible in court than the original order. I agree with many of his points. But I think the religious discrimination problem will continue to be a significant problem for the government. Courts are far more likely to uphold this order than the original one, but it is still far from a given that they will do so.
Wittes also notes that some refugees and people who have assisted US forces in the six countries covered by the order can now be admitted based on discretionary decisions by US consular officials. That is an improvement over the categorical ban in the original order. But Syrians and others considering aiding US forces may well choose not to do so if their fate will be at the mercy of a low-level bureaucrat who can easily decide either way.
UPDATE #2: As several people have asked about this, I should note that I addressed the argument that Trump's order does not discriminate against Muslims because it does not target all of the world's Muslims here. It is also effectively addressed in the recent Virginia federal district court decision ruling against Trump's initial order.
UPDATE #3: In the initial version of this post, indicated that the orders ban citizens of the six covered nations from entering the US for 120 days, rather than the correct number of 90 days. I apologize for the mistake, which I have now corrected.