The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.