What you need to know about the third version of the “Travel Ban”
On September 24, 2017, President Trump signed what is essentially the third version of the Travel Ban, (hereinafter, EO-3), in the form of a Presidential Proclamation entitled, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” The White House also concurrently released a Fact Sheet and FAQin conjunction with the Proclamation. The newest travel ban was set to take effect on October 18, 2017, but it was blocked again before it went into effect by two U.S. District Courts by way of a preliminary injunction.
The latest travel ban brings about a host of new questions.
What is new?
Chad, Venezuela & North Korea added, Sudan removed from the 212(f) list. EO-3 now includes: Chad, Venezuela, North Korea, Somalia. Yemen, Iran, Syria & Libya. Country-specific justification is included the the proclamation.
No more 90-day ban limit, this one is indefinite. Both previous versions of the travel ban had a time limit on how long the travel ban would be in effect. In a departure from the previous versions, EO-3 is indefinite.
Not all of the countries on the list are Muslim-majority. Another notable change in EO-3 is the addition of Non-Muslim majority countries: North Korea and Venezuela.
What does this mean for the pending challenge to Travel Ban 2.0?
2 cases challenging the second Travel Ban had made their way to the Supreme Court before President Trump issued EO-3. A day after President Trump issued the Proclamation, the Supreme Court removed both travel ban cases from the oral argument calendar (originally scheduled for October 10) and ordered both sides to write briefs regarding whether the cases were moot in light of the new proclamation and upcoming expiration. Those briefs were due on October 5.
So far, the Supreme Court has already dismissed one of these challenges as moot (Trump v. International Refugee Assistance Project), meaning that the case no longer presents a live case or controversy. This dismissal was due to the fact that the second Travel Ban previously expired and EO-3 is meant to replace the old one. The Supreme Court sided with the Federal Government’s argument that the second Travel Ban expired by its’ own terms. thereby no longer presenting a live case or controversy, and vacated the 4th circuit court’s ruling which temporarily enjoined the federal government from enforcing the ban.
The other challenge in the Supreme Court, Trump v. Hawaii, is still pending since this case also challenges the 120-day ban on the admission of refugees. Although it should be noted that this part of the March 6 Executive Order is set to expire on October 24, and it is likely that the Supreme Court will also dismiss this case as moot once it expires at the end of the month without reaching the merits of the case.
Does the addition of non-Muslim majority countries make EO-3 Constitutional?
With challenges to the latest travel ban already underway, the question on everyone’s mind is whether the fact that North Korea and Venezuela, 2 non-Muslim majority countries, have been added to the ban establishes that EO-3 is not based on religious discrimination.
Although the mere fact that 2 non-Muslim majority countries have been added to the list alone will not destroy the religious discrimination argument, it arguably makes the government’s position stronger.
However, the two U.S. District Courts that issued the preliminary injunctions, have made it clear that they are reading the justification listed for each banned country in EO-3 very closely to ensure that banning the entry of foreign nationals from each country will achieve the stated national security purposes.
The District Courts are clearly stating that although the President has wide latitude to control the admissions of foreign nationals into this country and the courts are limited in their ability to question the President on these matters, the President is still subject to checks and balances. It is important to remind readers that no President has ever utilized INA 212(f) to suspend entry of foreign nationals to such a broad extent. This is true in regards to both the indefinite length of the travel ban as well as the large category of people that it applies to. See related posts for more information.
A preliminary injunction was granted because the 2 courts believe that EO-3 challengers have a strong likelihood of success on the merits of the case, i.e., that EO-3 is unconstitutional. However, as with the previous EO challenges, the courts have yet to receive the full arguments from both sides as to the constitutionality of EO-3, let alone the merits of the overall case.
Although their are many issues that the court has to weave through before reaching the constitutional question, it does appear that these cases will end up back in the Supreme Court in the near future.
On a related note…
INA 212(f) is not the only tool at the President’s disposal to prevent foreign nationals from entering the United States. On October 8, President Trump suspended nonimmigrant visa services in Turkey after a Turkish employee of the American Consulate in Istanbul was arrested after being accused of espionage against the Turkish government. The U.S. cited concerns over the safety of its’ consular staff in Turkey. Turkish nationals are still able to apply for nonimmigrant visas and have them processed in other countries. Turkey has responded in kind, banning short-term American visitors from entering the country.
The suspension of visa processing of the admission of foreign nationals from entering the United States is a diplomatic tool that has always been at the President’s disposal, even before INA 212(f) came into existence. Previous Presidents have elected to wield this tool in the past, but we are definitely seeing it utilized now at an unprecedented level. Only time will tell if this diplomatic strategy will be a success.
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