The most immediate result of Donald Trump’s new “travel ban” order will be that district courts in Hawaii and California have likely begun clearing calendars already. As the previous and contested “travel ban” expired on Sunday, Donald Trump issued another executive order to extend and broaden it. The new version contains some elements that might make it less vulnerable to court challenges, even as the Supreme Court mulls over the expired EO:
The Trump administration announced new restrictions Sunday on visitors from eight countries — an expansion of the preexisting travel ban that has spurred fierce legal debates over security, immigration and discrimination.
In announcing the new rules, officials said they are meant to be both tough and targeted. The move comes on the day the key portion of President Trump’s travel ban, one which bars the issuance of visas to citizens of six majority-Muslim countries, was due to expire. …
Three nations were added to the list of countries whose citizens will face the restrictions: Chad, North Korea and Venezuela — although the restrictions on Venezuela are narrowly crafted, targeting that country’s leadership and their family members.
One country, Sudan, fell off the travel ban list issued at the beginning of the year. Senior administration officials said a review of Sudan’s cooperation with the U.S. government on national security and information-sharing showed it was appropriate to remove it from the list.
In case it escapes anyone’s attention, North Korea and Venezuela are not Muslim-majority countries, which makes the “Muslim ban” argument somewhat less valid. Perhaps that’s only “somewhat,” though, because the Kim regime isn’t exactly known for allowing its subjects to emigrate outside of the prison compound. The “ban” on Venezuela applies to government agencies rather than the citizens who might want to flee the collapse, which makes this more like another round of sanctions than a travel ban. In terms of impact, adding North Korea and Venezuela are more symbolic than practical.
Still, the rest of the EO shows some sophistication in the application of the pause, which will go 180 days in this order.For instance, Sudan managed to get itself off the list entirely, thanks to its cooperation during the previous 120-day pause. The US will allow Iranians to get student visas (with extra scrutiny), but not immigrant or other non-immigrant visas. Students can apply from most of the “ban” countries, in fact, except for Syria, where all visas will remain suspended. Somalians can apply for non-immigrant visas but not immigrant visas due to the specific threat of terrorism, primarily from al-Shabaab.
These tweaks and changes will make it easier for the Trump administration to defend its policies in court. They can argue that the suspensions are rationally targeted to specific threats to national security, and furthermore that they are non-discriminatory in nature. However, the new EO still raises the question as to when these “pauses” will end. Supposedly, the initial 90- or 120-day pause was going to be sufficient to revamp the vetting process in the US. The new EO foresees 180-day cycles of determining whether to keep the pauses in place, which promises to continue the governance-by-EO mentality of the previous administration. Congress should step up with a rational, statutory mechanism for this kind of discernment in order to move away from those impulses.