The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Donald Trump has issued a new travel ban executive order. While there are notable differences between this order and its two predecessors, the bottom line is that this latest version still has many of the same flaws as the ones that came before. It is also vulnerable to most of the same legal challenges.
The new order indefinitely forbids all or most entry into the US by citizens of five of the six Muslim-majority nations covered in Trump's previous order. The one exception is Sudan, which has been dropped and replaced by Chad—also a Muslim-majority nation. On this front, the biggest difference between the new order and the old is that the former makes the travel ban permanent, not just 90 days. Thus, the administration can no longer argue that this is just a brief pause intended to improve vetting procedures.
Because the new order targets nearly all the same nations as the previous one and is pretty clearly a direct outgrowth of its predecessor, it remains vulnerable to claims that its true purpose is to discriminate against Muslims, fulfilling Trump's notorious campaign promise to adopt a "Muslim ban." Trump has repeatedly said that the "territorial" approach adopted in the two earlier orders was intended to target Muslims, and even called it an "expansion" of the Muslim ban he promised earlier. The second travel ban was invalidated by the Fourth Circuit court of appeals on that very basis. The latest order continues much the same policy, with the important difference of making it permanent. There are some modest variations between the way the new order treats different countries. In some, virtually all entry is denied, whereas in others immigrant visas are forbidden, but some categories of nonimmigrant visas are not. But, with the insignificant exception of Venezuela (discussed below), the bottom line is that it categorically excludes the overwhelming majority of the citizens of the covered nations from entering the US.
Neither this order nor the previous one covers all of the world's Muslims. But it is possible to engage in unconstitutional discrimination against a group without targeting all of its members, and such discrimination is actually a common phenomenon.
The administration probably hopes that the discrimination claim will be undermined by the inclusion of North Korea and Venezuela. But the US, in any event, gets almost no immigrants or visitors from North Korea, because that government forbids emigration. And the Venezuela restriction applies only to a small group of government officials and their families (ostensibly to pressure them into cooperating with US security policies). In practice, virtually all the people actually affected by the order will be citizens of six Muslim-majority nations. The inclusion of North Koreans and a few Venezuelans in the order appears to be mainly a diversionary tactic, not a serious policy initiative. Or, as Peter Margulies puts it (channeling Woody Allen), it is a "travesty of a mockery of a sham."
As with the earlier orders, the argument that discrimination is the true purpose of the new one is bolstered by extreme weakness of the security rationale offered by the administration. In cases where there is evidence of an unconstitutional discriminatory motive, courts will nonetheless uphold the policy if the government can show that it would have adopted it anyway, for more legitimate reasons. That will be very difficult to show in this case.
In the forty years for which we have data, no one has ever been killed in a terrorist attack on US soil by a migrant from any of the countries covered by the new order. If the order had been in place at the time, it would not have kept out even a single terrorist since 9/11. On average, native-born Americans actually have a higher incidence of terrorism than migrants from any of these countries (though, of course, still an extremely low one). The order makes much of the covered nations' supposed failure to adequately share information about visa applicants with the US. But if these failures have not created any significant terrorism threat from migrants, then they don't qualify as a serious national security justification for the order.
Much like its predecessors, the new order actually imperils national security more than it helps it. It does so by barring the immigration of citizens of these nations (most notably, Syria, the focus of the current war against ISIS) even if they have aided US forces in the fight against terrorism. Under the order, consular officials can potentially grant waivers to some such individuals, if they conclude that they are not a threat to national security, that barring them would cause "undue hardship," and their entry would serve "the national interest." But if I were a Syrian or Somali considering helping the US, I would not want to bet my life on the discretion of low-level bureaucrats, especially in an administration deeply suspicious of immigration.
The new order also undermines security by gratuitously alienating people in the covered nations. Many migrants seeking to enter the US from them are actually fleeing the very same radical Islamist forces we are fighting ourselves. For example, the order categorically bars all immigration by Iranian citizens, even though Iranian immigrants to the US are notable for their opposition to that nation's oppressive theocratic regime. In this respect, the order is a propaganda gift to ISIS, the Iranian government, and our other enemies, who can now more credibly claim that the US is hostile to Muslims, as such, regardless of whether they support radical Islamism or not. For this very reason, ISIS supporters hailed Trump's original travel ban order as a "blessed event," and this one will probably make them happy too.
Unlike the Fourth Circuit, the Ninth Circuit ruled against Trump's earlier travel ban order on statutory rather than constitutional grounds. It concluded that the president exceeded the authority granted to him by Congress. In an important post on the Lawfare website, immigration law scholar Peter Margulies (who believes that previous travel ban order was legal) argues that the new one actually makes the administration's legal problems worse on this front. Because the new order is so broad, it exceeds the scope of the president's authority much more clearly than its predecessor.
The new order does differ from the earlier ones in one genuinely important respect: it does not include any categorical ban—either temporary or permanent—on refugee admissions. Morally, this was the cruelest and least defensible provision of the previous two iterations of the travel ban. But, legally, it was far less open to challenge than nation-specific bans, because—among other things—it did not obviously discriminate on the basis of religion. It remains to be seen whether Trump has given up the idea of severely limiting refugee admissions, or whether he will simply choose to do it in a separate order.
In sum, it seems safe to say that the legal battle over Trump's travel bans is far from over. Most of the same legal challenges raised against the second order can also be raised against this one. And it is very likely that they will be.
The interesting immediate question is what the Supreme Court will do with the cases currently before it, challenging the legality of the earlier travel ban order. For reasons well summarized by Georgetown law professor Marty Lederman, the Court might well declare these cases moot and decide not to consider them. Earlier today, the Court issued an order cancelling the previously scheduled October 10 oral argument date for these cases, and asking the parties to file letter briefs on the issue of whether the new order renders them moot.
If the Court does decide the current travel ban cases are moot, litigation on the new order will almost certainly soon commence in the lower courts, as a variety of state governments and private parties challenge its legality. Alternatively, the justices could try to continue with the current cases, in part because they raise many of the same issues as new litigation would. We will soon see what the court decides on that score. But either way, this fight is almost certainly going to continue.
UPDATE: It is perhaps worth noting that the new travel ban is officially labeled a "proclamation" rather than an "executive order," as the previous two travel ban policies were. But I see no meaningful legal difference between the two, nor is this terminological difference likely to influence the outcome of any challenges to the new policy.