This piece was originally published in Above the Law.
Donald Trump has released his third attempt to ban travel to the United States on the basis of religion. Travel Ban 3.0 comes in the form of a 15-page presidential proclamation and now places travel restrictions on “bad” countries indefinitely.
The Supreme Court responded on Monday by canceling oral arguments on the travel ban, which had been scheduled for early next month.
Two things are true about this new ban, and we need to be able to hold both in our head at the same time.
- It’s still the same bigoted attempt to ban people on the basis of their religion and country of origin. Nobody should be fooled by this.
- It’s probably going to be considered legally fine. It’s bigoted and racist in the standard ways this country is often bigoted and racist without it being considered a constitutional violation.
If the third ban had been the first ban, only astute observers would point out its fundamental flaws. Most people, and most white Americans in particular, would not have heard such a dog-whistle because they never do. It would have been an uphill battle to get people to see the ugliness, the logic being that that surely an American president would not be capable of such bigotry.
Of course, this travel ban is not our first rodeo. Donald Trump has told us, repeatedly now, that his real intention is to ban Muslims from traveling to this country. He told us during the presidential campaign that he wanted a “complete and total shutdown” of Muslims entering the United States. His first travel ban attempted to claw back the legal status of current permanent residents and valid visa-holders while preserving the rights of Christians living in Muslim-majority countries. His second ban included restrictions unsupported by any evidence of potential harm and cynically (and unconstitutionally) banned people’s grandparents from visiting them.
We all know what Donald Trump is trying to do. And we all know why he’s trying to do it. This isn’t about security or safety, this is about exciting his white base by throwing some Muslims who don’t live here to the lions.
And yet, this new ban is entirely better, and facially more legal, than anything that came before. Let’s look at the basics.
- It has reasons. I know that’s setting the bar very low, but the previous travel bans were based on a nod/wink system that required us to just intuitively understand which countries were “bad” and know why. This one actually bothers to explain itself. The United States requires certain information from countries before giving visas to citizens of those countries. The United States has determined that Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and (weirdly) the government of Venezuela cannot meet those requirements. Hence, travel from those countries to the United States is banned or severely restricted. We can quibble over whether the requested information is necessary or appropriate as a policy matter, but requiring information is a legal reason for restricting travel. It only took the administration three tries to come up with a legal fig leaf. Congratulations.
- It treats different countries differently. Again, pretty low bar here. But recognizing the situation in Syria is different from the situation in Chad is a step in the right direction. Hell, recognizing that Chad is a place where troubling things might be going down (Chad was not on the original list of banned countries) but Sudan is in a more stable situation (Sudan was on the original list of banned countries but is not now) is a freaking triumph for this administration. Travel Ban 3.0 has a sliding scale of restrictions based on something approaching a fact-assessment of the banned countries. It’s not great, but it’s a start.
- Countries can get off the list. And they can do this without, you know, requiring forced religious conversion of all of their people. The animating question of Travel Ban 3.0 is around the United States being able to know that the people traveling from these countries are who they say they are. So if, say, Iran wants to get off that list, there are things that Iran can technically do to get off the list. They’re not things that Iran is likely going to be able to do even if its people wanted the country to. Nobody believes that Iran is being held to the same standard that Serbia is being held to. Or Russia. But at least Iran now has something approaching a process for getting off this bigoted list if it wants to.
When Trump first said that he wanted to ban people based on their religion and others responded, “he can’t do that,” but some lawyers said “actually, there’s probably a way he can do that,” this is what they were talking about. This is how you ban people based on their religion and country of origin without setting off a constitutional firestorm. If we had started here, there would be a lot of legal challenges and consternation, but this would probably sneak through divided courts without too much trouble.
But we didn’t start here. So now the question becomes whether courts will take this ban at face value—a face value which is pretty awful but not leaps and bounds beyond the normal level of international bigotry the United States feels comfortable exporting to the Muslim world—or if courts are going to say, “I see what you did there.”
In terms of future potential litigation, new challengers will say Travel Ban 3.0 has all of the problems of its previous iterations. The court can rule on it if it decides to return to the issue, but only after lower courts have had their say.
It’s also of note that Travel Ban 3.0 does not address the refugee ban. So that may still need adjudication at some point.
Travel Ban 3.0 is the realization of a fear many people have of this legislatively impotent administration: If they keep throwing executive feces at the Constitution, eventually some of it will stick.
