President Trump’s New Travel Ban

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Oct 3, 2017

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AirportPresident Trump announced a revised version of his controversial travel ban, adding a handful of new countries and making the ban an indefinite fixture rather than a temporary restriction.

Although the new initiative has expanded to include countries which are predominantly non-Muslim, critics of the measure claim that it suffers from many of the same flaws which federal courts found suspect in the first version.  The measure will undoubtedly face a federal legal challenge when its effects become fully known.

President Trump Passes New Travel Ban

In late September, President Trump implemented new travel restrictions on visitors from eight countries in an expanded version of his targeted ban which originally featured six Muslim-majority nations.

Under the new ban, foreign nationals from Chad, Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela face a variety of travel restrictions entering the United States which will be implemented in stages over the coming months.  The old ban, which focused on Iran, Syria, Libya, Somalia, Yemen, and Sudan, has been modified slightly by dropping Sudan and including Chad, North Korea, and Venezuela — the latter two standing out as the only non-Muslim countries on the list. 

Another new feature of the order is that it comes without a time limit, saying that the restrictions will exist until the listed countries satisfy conditions which reduce their perceived threat. 

Also unlike the prior travel restrictions, consular officers will be granted the discretion to grant exemptions from the restrictions on a case-by-case basis when a foreign national coming from one of those countries is able to demonstrate that denied entry to the United States will cause an “undue hardship” and he or she is not a risk to national security.

As with his prior travel bans, the Trump Administration has maintained that the restrictions are necessary for the safety of the country.  In an official White House statement, the President defended his restrictions by saying “We cannot afford to continue the failed policies of the past, which present an unacceptable danger to our country … My highest obligation is to ensure the safety and security of the American people, and in issuing this new travel order, I am fulfilling that sacred obligation.”

New Order Faces Stiff Opposition

As with Trump’s earlier travel restriction executive orders, his latest initiative has earned criticism for allegedly discriminating against Muslim foreign nationals without providing a measurable benefit to national security, or even serving a need.

Although the President’s new order includes North Korea and Venezuela — two non-Muslim majority countries — critics point out that neither country produces a meaningful number of immigrants due to restrictions by both of the ruling governments — effectively nullifying their inclusion in the travel restriction.  Given that the order is still likely to have its greatest, if not only, effect on Muslim immigration, it faces much of the same legal criticism which led to earlier versions being invalidated by federal courts.

Further, critics argue that the security rationale proffered by the President and his supporters does not align with evidence of the perpetrators of terrorist attacks.  Data from the past forty years shows that no one has ever been killed by a migrant from any of the eight countries listed on the order, and historically tragic terrorist attacks, notably 9/11, would not have been prevented with the President’s restrictions.

This point is critical because should a federal court agree that the ban is discriminatory against Muslims, such a targeted order would be constitutional if the government can demonstrate the initiative serves a legitimate national security interest.

Legal Challenges to New Executive Order Likely to Mirror Original Arguments

Given the similarities between the President’s new executive order and his prior versions, the legal arguments against it are likely to be substantially similar.

Attorneys for the ACLU, who have led the charge against the travel bans since the first one was issued early in Trump’s presidency, have reiterated arguments that the restriction unconstitutionally targets Muslims, does not have substantial evidence to show that it protects against legitimate national security concerns, and it exceeds the President’s legal authority.  All of these arguments have worked in lower federal courts to dismiss one of the prior iterations of the travel ban.

The Supreme Court agreed to hear a challenge to the President’s second travel ban during its October session, but it is possible that the issuance of the new order renders that case moot.  The Court has already issued an order cancelling the previously scheduled October 10th date to hear oral arguments, asking both parties to file written arguments addressing the question of whether or not the new order makes the existing challenge worth hearing.

Regardless of whether or not the Court hears the case during this coming term or not, the Justices will likely have their opportunity at some point to issue a final word.

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