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3/7: New Travel Ban, Same Poisonous Policy
Released 27 March 2017  By Elizabeth Goitein-US News & World Report

New Travel Ban, Same Poisonous Policy

Trump's revised travel ban should fail for exactly the reason the first one did.

Elizabeth Goitein | Contributor US News & World Report

March 7, 2017

President Donald Trump's second try at an executive order halting immigration from certain majority-Muslim countries takes a markedly different tone from the first. It spends several pages discussing the perceived need for the policy, and it emphasizes the exceptions to the travel ban, rather than downplaying them as the prior version did. The clear intent is to convince the courts that the ban is the result of careful deliberation rather than religious animus.

But the tactical tweaks in this latest edition cannot rescue the order's constitutionality. Underneath the softened rhetoric and other adjustments lies the same poisonous policy: an effort to restrict Muslims' entry into the U.S.

The outlines of that effort are now familiar to both the American public and the courts. Subject to discretionary, case-by-case exceptions, the revised order bars the issuance of visas to people from six majority-Muslim countries Syria, Iran, Libya, Sudan, Somalia and Yemen for 90 days, and suspends the refugee admissions process for 120 days. The stated purpose of the freeze is to give federal agencies time to shore up the vetting process for people seeking entry to this country. Once that process is revamped, the ban will be extended for countries that cannot provide whatever new assurances the U.S. government seeks.

Multiple courts have already found these measures to be constitutionally suspect. In the Ninth Circuit (encompassing the western states), a trial judge and a federal appeals panel concluded that the first travel ban appeared to violate the Constitution's due process clause, impinging on important rights without giving notice or a hearing to those affected. A court in Virginia found that it likely violated the First Amendment's Establishment Clause because it had the intent and effect of disfavoring one religion.

Judges across the country also probed the motivation behind the ban. They highlighted the lack of evidence of domestic terrorism by nationals of the selected countries and the ample evidence that the policy was a sanitized, smaller-scale version of Trump's campaign promise to bar Muslims from the U.S.

Administration lawyers have done their best to sanitize the order even further. In the new version, they removed a provision stating that religious minorities should be given preference in future refugee applications thus excising the order's only expressly discriminatory language. This change was necessary, but hardly sufficient. Unconstitutional bias in official policy is rarely self-announced. Courts have plenty of experience in reading more subtle cues.

The revised order also exempts green card holders, current visa holders inside the U.S. and people overseas who had already obtained visas when the original order was issued. The due process implications of the travel ban are most obvious for these categories of immigrants, who have already developed ties to the U.S. But contrary to the new order's suggestion, these are not the only groups that prompted "judicial concerns." In declining government attorneys' invitation to narrow the ban themselves, the judges of the Ninth Circuit were careful to note that such a "solution" would not address the due process claims of refugees, non-visa holders currently inside the U.S. and Americans who have an interest in foreigners' ability to obtain visas.

Moreover, exempting those who are currently authorized to be in this country does nothing to address the order's First Amendment flaws. The Establishment Clause prohibits the government from preferring one religion to another, regardless of whether that preference is applied to people inside the United States or people seeking entry.

Another change in the new version is the removal of Iraq from the list of designated countries. This was more of a public relations move than a legal strategy. The rank unfairness of the travel ban was perhaps most evident here, given the U.S. invasion and the assistance many Iraqis provided to our troops. Unfortunately for the administration, giving Iraqis a pass also tore a giant hole in the national security fig leaf. Apparently, public safety didn't require the exclusion of visitors from Iraq despite Trump's vehement assertions to the contrary a mere month ago. The sudden shift throws the previous security claims even further in doubt.

The absence of a plausible national security justification remains the order's exposed Achilles heel. The revised order recites the political chaos and terrorist presence within each of the six named countries. But these conditions are exactly why the current vetting procedures for would-be travelers from those countries are so rigorous, resulting in high rates of visa denials. The conspicuous missing link in the administration's argument for a temporary stay is any indication that these procedures have failed.

In the several weeks since the courts made clear they would demand better evidence, the administration has managed to locate two examples of actual terrorist activity to support the order. The first involves two Iraqi refugees who were convicted of multiple terrorism-related offenses; the second involves a Somali American convicted of plotting to detonate a bomb in Portland, Oregon. The Iraqi refugees, however, were imprisoned for plotting terrorist attacks inside Iraq not in the U.S. The Somali-born American, who came to the U.S. as a child, was the subject of an FBI sting in which federal agents devised and led the fake "operation." The fact that these are the strongest examples the administration could find speaks volumes about what the order's real motivation was and was not.

The order also mentions, almost in passing, that the attorney general "has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of [FBI] counterterrorism investigations." Devoid of additional context, this statement raises more questions than it answers. Are these "predicated" investigations, which are based on evidence, or so-called "assessments," which can be based on anonymous tips or simply an agent's hunch? How many of them were initiated after the courts noted the lack of a security justification for the refugee ban? How does the administration explain the discrepancy between the dearth of actual terrorist activity and the number of open investigations?

Most important is what the order fails to do. It does not and cannot erase the many statements Trump made, both as a candidate and as president, betraying the real intent behind the order and the prejudice underlying that intent. Having proudly advertised the policy as a Muslim ban, the president cannot now foist amnesia on the courts through better wordsmithing. The new order should fail for exactly the reason the first one did. Our Constitution stands for religious freedom, equality and fairness even when our president does not.

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