Immigration

The End of Trump's Travel Bans

On his first day as president, Biden will end both of Trump's travel ban policies. It's a big step in the right direction, though more remains to be done.

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On his first day in office, President Biden will issue an executive action repealing Donald Trump's travel bans. It will abolish both the 2017 travel ban covering several Muslim-majority nations, upheld by the Supreme Court in Trump v. Hawaii, and the 2020 expansion, which added several more countries to the list, including Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania. The move is an important step in the right direction, though much more remains to be done to reverse the damage done by Trump's travel ban orders, and the weaknesses they revealed in our legal institutions.

There is no real doubt that Biden has the power to reverse the travel bans by executive action alone. If you buy the Trump Administration's position on their legal status, they were decisions entirely left to the discretion of the president, which means a new president can repeal them any time he wants to, and for almost any reason. Co-blogger Josh Blackman, a leading academic defender of the legality of the travel bans, also recognizes that Biden can easily repeal them.

If you believe, as I and other critics do, that the travel bans were unconstitutional, it is even more clear Biden has the authority to repeal them. Indeed, in that event, he would have a legal duty to do so.

Getting rid of Trump's travel bans has important symbolic and constitutional significance, in as much as it abolishes a set of policies that were clearly motivated by religious bigotry. Don't take my word for it. Take that of Trump himself, who repeatedly equated his 2017 travel bans with the "Muslim ban" he notoriously promised during the 2016 campaign. I have previously addressed the argument that the bans were not discriminatory because they didn't cover all the Muslims in the world (see here) and the claim that it is somehow improper to consider Trump's motives here. The 2020 expansion was not as overwhelmingly focused on Muslims as the 2017 policies, and not as closely linked to Trump's 2016 campaign promises. But it had elements of bigotry nonetheless, especially when viewed in combination with the earlier (and still ongoing) travel bans.

Legal and symbolic issues aside, Biden's reversal of the travel bans can begin to reverse their awful real-world consequences. The travel bans had horrific effects on thousands of people, both would-be immigrants and refugees, and American citizens, including many who were cruelly separated from family members. The continuation of the travel bans would also damage the American economy, most notably because the addition of Nigeria to the list blocked new immigration from a nation that has provided us with one of our most successful and productive immigrant communities.

The supposed security rationales for the travel bans were bogus, and the supposedly "extensive" study backing them was no such thing. Indeed, by alienating key allies, barring refugees fleeing Islamist oppression, damaging America's image, and providing propaganda opportunities to radical Islamists (who were happy to see them  adopted), the travel bans probably damaged American security interests much more than they facilitated them.

While Biden's repeal of the travel bans is a valuable step, it does not and cannot fully address the flaws Trump's policies revealed in our legal system. Biden's order obviously cannot eliminate the double standards in current Supreme Court precedent, which permit discrimination in immigration policy of a kind that would be ruled unconstitutional in almost any other context.

The reversal also doesn't fix the dangerously broad interpretation of 8 U.S.C. 1182 in Trump v. Hawaii, which effectively gives presidents virtually unlimited power to exclude any migrants they want, including those otherwise qualifying for admission under congressional legislation. This issue may be addressed by litigation currently underway challenging Trump's more recent restrictions on work visas, in which a court has already struck down those restrictions on nondelegation grounds. The Supreme Court did not address nondelegation in Trump v. Hawaii, and a ruling striking down or narrowing Section 1182 could be one way to curb the ridiculously broad discretion the president currently enjoys.

That discretion might also be constrained if Congress passes the No Ban Act, which the Biden administration plans to include in the US Citizenship Act it will soon submit to Congress. At least for the moment, I am not optimistic that this bill can get through a closely divided Congress. But Biden's willingness to push for it is nonetheless notable—and a sharp contrast with the Obama administration, which was unwilling to make immigration liberalization a significant element of its legislative agenda, when they had the chance to do so in 2009-11.

Finally, the Biden Administration would do well to disclose the study that supposedly justified the travel ban upheld by the Supreme Court in Trump v. Hawaii. Available evidence strongly suggests that study was, to understate the point, not actually what the Trump administration claimed it was. Given that the study was cited by the Supreme Court as one of the rationales for an extremely important precedent, it is important for us to know whether it was actually a put-up job.

Confirmation of the latter would not by itself prove that Trump v. Hawaii was wrongly decided (the outcome can be defended on various grounds even without reference to the study). But the true nature of the study should nonetheless affect both the Court's and the broader legal community's evaluation of the ruling, and could influence future justices in determining how broad a scope to give to its reasoning—and perhaps even in considering whether it should be overruled.

Despite some largely unavoidable limitations, Biden's repeal of Trump's travel bans is an important and valuable step. I hope it will be only the first of many improvements in immigration policy that collectively will reverse both the injustices of the Trump era, and at least some of those that predated it.

UPDATE: Biden's reversal of the travel bans is part of a much broader immigration reform agenda, including a bill about to be submitted to Congress. I hope to have more to say about it in the future. For now, I recommend Alex Nowrasteh's excellent analysis of Biden's proposed legislation. I agree with most of the points Alex makes, including his bottom-line assessment that this legislation—if it passes—would be a huge improvement over the status quo.

 

 

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  1. DACA was an unconstitutional EO, and Trump couldn’t revoke that.
    What’s the difference here?

    But of course we want to let in all kinds of terrorists.

    1. Wasn’t the DACA issue an administrative procedure issue? If Biden follows the APA, he can repeal executive orders.

      1. If he follows the APA, sure…. But then it won’t be a day one result.

    2. “But of course we want to let in all kinds of terrorists.”

      Recently, the insurrectionists have come from rural Virginia, backwater Pennsylvania, can’t-keep-up Ohio, downscale Arizona, downstate Illinois, and similarly desolate, backwater locations.

      1. That’s pretty racist to describe BLM members in those terms, Kirkland.

        I’d think most people would recognize the difference between how we handle people from other countries and criminal citizens who have the right to be here, but you’re different because of your contempt for the constitution and liberty.

        1. I agree with preventing terrorists from entering the United States. I do not agree with the White supremacists and right-wing xenophobes whose immigrant-bashing preferences are no longer represented in our White House.

          1. Me too and me neither.

      2. RAK, almost all the nations on the list are on the Obama’s State Dept list of state sponsors of terrorism.

    3. Hey, numbnuts. One of my interpreters, who risked his life in service to the US, was caught in this muslim ban on the very day it was enacted. His family, fleeing near certain death in Afghanistan had to sit in complete terror for a few days wherever they were held over while the state department worked through the confusion that are the hallmark of these typical Trump plans. It was 50/50 if he was going to be denied entry and sent back to an airport where the taliban would have their spies watching.

      So, from the bottom of my heart, fuck you, you fucking bigot.

      1. this muslim ban

        My days of not taking you seriously….etc, etc….

        1. Racist pedants are not gonna take me seriously? Oh no.

    4. As long as no Americans are helped and all the benefits of the policy go to foreigners you can be sure they will support the policy.

    5. Calm down, boy. There ain’t nothing under yer bed.

  2. “…barring refugees fleeing Islamist oppression…”

    HahahA!!!! The libs have spent the last two decades telling us such a thing like Muslim oppression is a figment of the imagination. Nice one!

    1. Maybe one day you guys will come up with policy and arguments that are based on their merits, instead of what you think you can justify by citing someone else’s behavior.

      1. Rather than insults, what should be done about travel from countries designated under Obama as state sponsors of terrorism

        1. We aren’t talking about countries but rather individuals from those countries,

          This distinction is how Obama managed to keep things secure without a complete ban.

        2. The only country Obama put on the list was North Korea. There are only four countries on it as of now- NK, Iran, Syria, and Cuba.
          Look it up on Wikipedia.

          The countries you are referring to were removed from the visa waiver program, under which travelers from many countries can easily obtain a visa to visit the US.

          Individuals from countries not in the program can still obtain a visa, but must apply and be interviewed in person. So it’s not a travel ban, and Obama never designated these countries as state sponsors of terrorism.

          You really shouldn’t believe anything Trump or Kellyanne Conway or anyone on Fox says without checking.

        3. Here’s what will happen: if the visitor commits some criminal or terrorist act, the news media will all agree to report it in a way that absolves the Biden Administration.

          Then the usual group who don’t like Americans will come on here and say the act doesn’t matter and the victims don’t matter because Americans commit crimes too/more often. And what really matters is not the Americans dead or suffering, but the feelings of other people from that country who might experience a backlash.

      2. Like something as simple as don’t let in people from countries that support terrorism and have a history of fraudulent identification documents.

  3. TL:dr

    Open borders fanatic likes open borders. Yawn.

    1. Backwater bigots and other obsolete conservatives don’t like immigrants or immigration.

      Another spirited meeting of Libertarians For Authoritarian, Bigoted, Cruel Immigration Policies And Practices is convened at the Volokh Conspiracy.

      Faux libertarians, united!

  4. Let the jihadis in day. Yay! Sarc off/

  5. the Biden Administration would do well to disclose the study that supposedly justified the travel ban upheld by the Supreme Court in Trump v. Hawaii. Available evidence strongly suggests that study was, to understate the point, not actually what the Trump administration claimed it was. Given that the study was cited by the Supreme Court as one of the rationales for an extremely important precedent, it is important for us to know whether it was actually a put-up job.

    Wait. You mean the court cited the study without actually knowing what was in it?

    Seems more than a bit, um, injudicious, shall we say.

    1. Wait. You mean the court cited the study without actually knowing what was in it?

      Well, since that’s not at all what he said I’m not sure how you managed to conclude that’s what he meant. Also, the only evidence Somin cites for his claim that the “study” (it was a final report on what was said to be a multi-agency review of the vetting processes of some 200 countries) is his own claim of the same in another blog piece of his. I also note that he doesn’t substantiate his foundational claim that the report in question was what “justified the travel ban” to the majority.

      1. He said it hadn’t been released, and if you follow the link to his post on the subject you find it was not released to the court.

        They went on Francisco’s assurances. Big mistake.

        Francisco claimed that the policy was actually based on an “extensive worldwide process” analyzing of the security risks posed by entrants from all of the world’s 200 nations, which in turn resulted in a “neutral baseline” of security criteria that were evenly applied to “every nation in the world.” Meanwhile, the administration refuses to release this supposed analysis to the courts (despite the availability of in camera proceedings under which classified information could be released to the judges but withheld form the public),

        Wonder if he could be sanctioned if it turns out that there is no such scrupulous process. Ha-Ha.

  6. “There is no real doubt that Biden has the power to reverse the travel bans by executive action alone. If you buy the Trump Administration’s position on their legal status, they were decisions entirely left to the discretion of the president, which means a new president can repeal them any time he wants to, and for almost any reason”

    I would have believed that before the DACA shenanagins….

    1. It’s like you are purposefully keeping yourself ignorant of the DACA opinion so you can pretend there is a double standard here.

      1. Which DACA opinion? There were so many of them.

  7. Who here remembers the travel ban was just a scam to begin with? Please recall : Trump began telling his crowds of raucous worshipers he would ban Muslims. The MAGA-types ate that up with loud & lusty cheers. But Trump needed something that looked like a policy – more than a throwaway line like “Mexico Will Pay For the Wall”

    So what started as whoring for applause became this : When Trump became president he will immediately sign a Ban. This would be a temporary measure of two to three months while stringent new border security measures were researched & implemented. Of course the MAGA-types heard nothing except the word “Ban”, but that became the rationale.

    Of course you know what happened. Trump signed his order, but it was immediately tied-up by multiple court stays. Month after month followed as Trump fought for his ban. Long after what was originally to be the Ban’s lifespan, a judge thought to ask the research & implementation was going.

    You can predict the answer: The administration hadn’t even started. The so-called reason had never been more than a pretense. The Ban was just another Trump stunt divorced from reason, purpose and policy.

    Damn its good to have a real president back in office.

  8. “The move is an important step in the right direction, though much more remains to be done to reverse the damage done by Trump’s travel ban orders, and the weaknesses they revealed in our legal institutions.”

    Quite so.
    The only persons requiring extensive vetting for national security concerns are the US military.

  9. The bans should continue. Good God. Do people have such short memories? Only two weeks ago thousands of armed Nigerians, Kyrgystanis and Tanzanians swarmed the Capitol and actually broke into it!

  10. I agree President Biden has the same discretion to repeal the travel ban as President Trump had to decide it.

    Trump v. Hawaii was correctly decided.As USAID v. Alliance for Open Society (2020) reiterated, it has been a long-held, bedrock principle of comstitutional law that extraterritorial aliens completely lack constitutional rights. And Roe v. Wade stands for the proposition that those lacking constitutional rights are not persons in any meaningful constitutional sense and, wholly lack comstitutional personhood, even if they are treated as persons for some statutory purposes. As Roe v. Wade noted, in some states fetuses could sue in court, (as extraterritorial aliens can, at least those who are citizens of recognized foreign states), but such things are imsufficient for constitutional personhood to exist.

    It seems to me that religion im any constitutional sense cannot exist without personhood. Religious beliefs are personal beliefs. Rocks, trees, animals don’t have them. Fetuses don’t. If the ACLU filed a suit claiming that a government action the first amendment because it violated trees’ religion, it would be dismissed for this exact reason: only persons can have a religion within the meaning of the constitution, and the ACLU’s belief that trees possess a religion is itself a religious belief that cannot be imposed on secular government, as much a religous belief as anti-abortionists belief that fetuses possess souls. Same here.

    Roe v. Wade is highly instructive. It explicitly rejected the use of “biological facts” in addressing the question of fetal personhood, exactly as as USAID and its precedessors did in rejecting extraterritorial alien personhood. This clear language in Roe v. Wade establishes that what determines personhood is constitutional text, not scientific facts. It no more matters that an extraterritorial alien engage in behavior that appears to resemble, or is even regarded by scientists as being, a religion than it matters whether a 9-month fetus has brain development or engages in behavior that resembles a 1 day old baby. No biological or behavioral resemblamce bridges the gulf in constitutional personhood status. Just as a fetus just before term is constitutionally not a person but a thing, however closely resembling the same entity just after birth, so an extraterritorial alien six inches from the border is not constitutionally a person but a thing, however closely resembling in biology and behavior the same entity 6 inches over the US side of the border, when it becomes a person.

    Of course the federal government can protect extra-territorial aliens if it wants. But it doesn’t have to. (States can protect viable fetuses if they want to, But they don’t have to either. Several states have decided to have lineral late-term abortion laws.)

    This is the logical consequence of Roe v. Wade. Either we stick with Roe v. Wade and accept the consequences, or we overturn it. It is Roe v. Wade that held that personhood is a strict binary, either personhood “in the full sense of the word” or a lump of flesh not constitutionally different from a Gloria Steinem’s appendix.

    I personally disagree with Roe v.Wade, and particularly with its personhood binary logic, reasoning from not having full rights to not just not having any rights, but having the idea that they should have them considered nothing more than a religious belief. I think that personhood not only is not a binary and never has been in our legal history, but that aliens are a key proof of the existence of intermediate case, not full rights but not being regarded as equivalent to a piece of meat either.

    But you would have to overturn Roe. V. Wade as it now stands to get there. Roe’s binary personhood logic is central to its holding. Disturb that, and you could end up disturbing everything it stands for.

  11. Religious beliefs are personal beliefs. Rocks, trees, animals don’t have them. Fetuses don’t.

    Yet, according to SCOTUS, corporations can have such beliefs.

      1. You know exactly what he’s talking about and you agree with him.

        1. I know exactly what he is talking about and why his comment is a lie.

          Individuals have beliefs. Individuals retain their basic rights even when they form corporations and act together.

    1. The Supreme Court its holding to closely held corporations where the principals are in agreement. It basically held they don’t give up the rights they would have as individuals just because they decide to do business as a corporation

      I would note, however that the Supreme Court has said that corporations are constitutional persons within the meaning of the Due Process Clause. This reinforces rather than contradicts my claim that “person” is a constitutional term of art that has nothing to do with human boology or what ordinary people might think a person is.

      I would note that foreigners can’t, as a practical matter, have the same full rights American persons do. How could we fight a war if that were so?

      1. Can foreigners form an American corporation? Real question.

  12. What if the lives or the health of Americans mattered as much to leftists as whether travelers from Yemen were satisfied with us travel visa procedures?

    Americans just don’t matter to some. Always time to solicit the favor of foreign visitors though.

  13. I presume you mean Obama’s travel ban, to which Trump made some minor additions and clarifications, plus a temporary hold on issuing visas.

    https://www.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program

    1. Can you read your own link?

      Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

      Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
      Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

      These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.

  14. Nobody was ‘banned’. The decision not to come here was made by traveler’s country of origin. THEY refused to provide the requisite security data that a hundred(?) of other countries can provide.

  15. “…Co-blogger Josh Blackman, a leading academic defender of the legality of the travel bans, also recognizes that Biden can easily repeal them….”

    Sorry, you lost me at “leading academic.” 🙂

  16. Owning the libs seems to be harder already.

  17. Pandemic’s over. Day one. Good job Biden. Open borders uber alles.

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  19. Ilya Somin is Jewish and decides to ignore the national security implications of his guy’s decision to overturn Trump’s travel ban that will allow in many more Muslims who come from countries known to harbor hatred of civilizations like ours including Jews like him.

    Oh but wait, Somin lives in the D.C. area somehow immune from the very policies he can advocate for. He puts the “needs” of immigrants about the safety and security of the United States and is even willing to put his fellow Jews in danger in order to see his ideological vision become a reality.

    The vision of the anointed par excellance!

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