Trump’s travel ban legally sound, defensible all the way to SCOTUS

The Trump administration released Monday a revised version of its immigration Executive Order to address the concerns raised in an appeals court decision, but those criticisms were always fundamentally irrational and not based in the text of the Order.

President Donald Trump’s original Executive Order (EO), Protecting the Nation from Foreign Terrorist Entry into the United States, was challenged by two states in a U.S. District Court.  The District Court preliminarily ruled in the states’ favor and temporarily ordered the government to stop enforcing the EO.  

{mosads}The government appealed to the U.S. Court of Appeals for the Ninth Circuit and moved for an emergency stay to reinstate the EO pending the outcome of its appeal.  The Circuit Court was not convinced that the government was likely to prevail on the merits of its appeal, so it denied the government’s motion for a stay.

If Trump had appealed the Circuit Court’s decision to the Supreme Court, he would have been a shoo-in to win.  He opted instead to replace the EO with a revised version that, although it responds to the Circuit Court’s decision, is still battered by virtually the same criticism.  

For instance, according to the ACLU:

“The Trump administration has conceded that its original Muslim ban was indefensible.  Unfortunately, it has replaced it with a scaled-back version that shares the same fatal flaws.  The only way to actually fix the Muslim ban is not to have a Muslim ban.”

The ACLU is referring to the states’ claim that the EO was never meant to protect against terrorist attacks.  It is the Muslim ban that Trump talked about in campaign statements, which the states claim is unconstitutional religious discrimination.

For instance, he called for a “total and complete shutdown” of the entry of Muslims to the United States “until our country’s representatives can figure out what is going on.”

JUST IN: Trump issues revised travel ban https://t.co/B2mKArmwQB pic.twitter.com/wqei9Y4R45

— The Hill (@thehill) March 6, 2017

He is not the first politician to make a campaign statement that has come back to haunt him.  My favorite is President George H.W. Bush’s 1988 campaign promise, “Read my lips no new taxes.”   

Yet the word “Muslim” does not appear in the original or the revised version of the EO, and, if the objective of the EO had been a Muslim ban, it would not have been limited to the seven designated countries.  According to the PEW Research Center, the ban affects only 12 percent of the world’s Muslim population.

As of 2010, there were approximately 1.6 billion Muslims in the world, and nearly two-thirds (62 percent) of them lived in the Asia-Pacific region.

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Trump took the countries he selected for the travel ban from a list compiled pursuant to section 217(a) (12) of the Immigration and Nationality Act.  Nationals who have visited one of the 217(a)(12) countries are excluded from using the Visa Waiver Program (VWP).

President Barack Obama put five of the countries on the 217(a)(2) list on the basis of his determination that:

1. The presence of an alien in one of these countries increases the likelihood that the alien is a credible threat to the national security of the United States;

2. “A foreign terrorist organization has a significant presence in the country or area;” and

3. “The country or area is a safe haven for terrorists.”

And, to my knowledge, no one claimed that President Obama’s inclusion of these countries on the  217(a)(12) list was based on religious discrimination.

Also, the revised order provides reasons for viewing nationals from each of the banned countries as presenting heightened risks to the security of the United States.  For instance, section 1(e)(i) states:

“Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq.  Iran has also been linked to support for al-Qa’ida and has permitted al-Qa’ida to transport funds and fighters through Iran to Syria and South Asia.  Iran does not cooperate with the United States in counterterrorism efforts.”

Moreover, the travel ban is just the tip of the iceberg.  The EO also requires agency heads to determine what information is needed to vet aliens coming to the United States adequately and to prepare a list of countries that will not cooperate.  This is likely to have far more serious consequences than the travel ban.

“Trump’s immigration ban Executive Order is clumsy, but perfectly legal” https://t.co/vYSmiwZoXA pic.twitter.com/pGXq9lJL0h

— The Hill (@thehill) January 30, 2017

The Circuit Court reserved judgment on the states’ claim that the EO was unconstitutional because it discriminated against the Muslim religion, and relied instead on a finding that the government was not likely to prevail on the states’ due process claim.  

The Circuit Court’s due process finding, however, was based primarily on the initial EO’s failure to provide a hearing for lawful permanent residents returning from a trip abroad who are excluded from admission to the U.S. by the travel ban, and this issue is moot now because the revised EO excludes them from the travel ban.

It also excludes other groups, such as aliens who have a valid visa on the effective date of the order.

I say again, if President Trump loses in the Ninth Circuit, he is a shoo-in to win if he takes the case to the Supreme Court.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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