The Volokh Conspiracy
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Yesterday, President Trump signed a new entry ban, which I will refer to as Travel Ban 4.0. I have four tentative thoughts on the new proclamation.
First, Travel Ban 4.0 builds on Travel Ban 3.0, which the Supreme Court upheld in Trump v. Hawaii. Specifically, it articulates specific criteria by which countries would be assessed, and then determines whether a country meets those criteria. This proclamation discusses a lengthy, multilateral process between agencies, that weighed certain domestic and foreign policy considerations. We are far, far away from the slapdash approach of Travel Ban 1.0.
Second, critics of the policy will simply charge, once again, that this elaborate policy is a pretextual ruse. The policy is really motivated by the President's animus towards Islam. The six new nations on the list have substantial Muslim populations: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. And advocates will also rely on allegations that the President referred to certain African nations as "shithole countries." Trump v. Hawaii relied extensively on the President's public statements and tweets about Islam. In contrast, the "shithole" comment was purportedly made in a private meeting, and was reported subsequently by several attendees. FactCheck treats the statement as "disputed." I long ago wrote that federal courts should not be in the business of fact-checking political statements.
Third, Travel Ban 4.0 employs a variegated strategy. With Travel Ban 3.0, the remedy was the same for all countries: nationals were banned entry. But for Travel Ban 4.0, the President chose different punishments. Nationals from all of these countries, who already have visas, will be allowed to use those travel documents. No one will be trapped at airports, like with Travel Ban 1.0. Rather, Nationals from four countries will not be allowed to apply for immigrant visas, which permit some sort of permanent residency: Burma, Eritrea, Kyrgyzstan, and Nigeria. Nationals from these four countries will still be allowed to apply for non-immigrant visas, such as as a tourist visas. Nationals from two countries will not be allowed to apply for the diversity visa lottery program, also known as the "visa lottery": Sudan and Tanzania. As far as I can tell, nationals from these countries can still apply for immigrant and non-immigrant visas. (I welcome corrections).
Advocates will raise a statutory argument: 8 U.S.C. 1182(f) only allows the President to deny entry. That provision does not allow the President to deny visa applications. I disagree. Trump v. Hawaii largely adopted an argument I advanced since the outset of the litigation: the power to deny entry includes the lesser power to block people from applying for visas. Chief Justice Roberts explained:
In any event, we reject plaintiffs' interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the pool of individuals who are admissible to the United States. . . .
Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility into the United States, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility—to which § 1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the "issuance" of "immigrant visa[s]," without mentioning admissibility or entry.
I expect advocates will also argue that this policy is irrational: if these countries cannot verify a person's identity, or are so dangerous, then why allow some nationals to enter on non-immigrant visas? Moreover, what does the diversity lottery have to do with national security? The response: the government need not act reasonably, only rationally. And this term of art, at least in the constitutional context, does not require a meaningful fit between the means and ends. There are enough justifications in this lengthy proclamation for the policy to easily meet constitutional and statutory scrutiny. For example, the proclamation offers this rationale to restrict immigrant visas, but not immigrant visas:
Consistent with the January 2020 proposal, I have prioritized restricting immigrant visa travel over nonimmigrant visa travel because of the challenges of removing an individual in the United States who was admitted with an immigrant visa if, after admission to the United States, the individual is discovered to have terrorist connections, criminal ties, or misrepresented information. Because each of the six additional countries identified in the January 2020 proposal has deficiencies in sharing terrorist, criminal, or identity information, there is an unacceptable likelihood that information reflecting the fact that a visa applicant is a threat to national security or public safety may not be available at the time the visa or entry is approved.
Finally, the proclamation has a severability clause. If any one part is declared unlawful, the remainder will stand.
Fourth, some district court judge somewhere will enter a nationwide, non-party injunction, to block the proclamation as to all nationals of these six countries. And, shortly thereafter, I suspect the Supreme Court will stay the injunction. And the policy will go into effect. If five Justices (including Justice Kennedy) were willing to uphold Travel Ban 3.0, then five Justices (with Justice Kavanaugh) will likely uphold Travel Ban 4.0. And if President Trump is re-elected, I expect to see another, much broader travel ban issued. I suspect many more countries will be excluded from the visa lottery, a long time target of President Trump. That policy may ultimately be gutted entirely. The first step is to exclude a handful of countries from its requirements.