Nonprofit, independent journalism. Supported by readers.


Why Trump’s latest travel ban may stick

The latest edict shares a lot with its predecessors, but has been more carefully written to head off legal challenges.

By presenting the travel ban as more evidence-based — and not prejudice-based, as its critics argue — the White House is hoping to protect it in the face of inevitable legal challenges.
REUTERS/James Lawler Duggan

Donald Trump’s policy agenda as president, from repealing and replacing Obamacare to building the border wall with Mexico, has largely been defined by fits and starts — one step forward, two steps back.

In no area has that pattern been more evident than with the president’s signature national security initiative: his executive orders restricting the entry of immigrants, refugees, and travelers to the U.S. from a group of countries deemed to pose a security risk.

The so-called “travel ban,” which was first signed in January, revised in March, and now revised again last week, has been a lightning rod for national and international criticism, and a source of confusion for people in the U.S. and affected countries.

The prior versions of the travel ban, which targeted only countries with Muslim majorities, were held up to varying degrees by federal courts after legal challenges. A U.S. Supreme Court hearing on the executive orders, slated for October, clouded the future of the president’s policy, which he and his surrogates tout as a critical way they are keeping the U.S. safe from terrorist attacks.

Article continues after advertisement

The latest version of the order, however, includes a broader group of countries, and makes clearer the government’s rationale in selecting which countries’ citizens will face tough restrictions and “extreme vetting,” and which ones will not.

By presenting the travel ban as more evidence-based — and not prejudice-based, as its critics argue — the White House is hoping to protect it in the face of inevitable legal challenges.

What’s different

Travel ban 3.0, which was issued by the White House on Sunday, shares the essential DNA of its predecessors, but has some key differences designed to make it more sustainable in the long run.

For one, the group of countries targeted by the order is different. Though it includes the five Muslim-majority countries targeted by the first two orders — Somalia, Syria, Yemen, Libya, and Iran — it adds three new ones: Venezuela, North Korea, and Chad. It also removes Sudan, which was previously on the list.

The new order also specifies that legal U.S. residents are not subject to any of the travel restrictions, even if they are nationals of one of the affected countries. But the order still affects anyone who might want to live, study, work, or travel in the U.S. from these countries in the future, which would block the issuance of tens of thousands of new visas, according to the Washington Post.

The ban’s specific restrictions vary from country to country: For example, only certain Venezuelan government officials are affected by the ban. Iranians, on the other hand, are blocked from immigrating to or visiting the U.S., but there are some exceptions for students. For a person in the other countries, traveling to the U.S. would be nearly impossible without a close family connection in the U.S.

The fate of the refugee resettlement program, which was suspended for 120 days in the prior order, was not included as part of the new executive order. On Wednesday, the administration notified Congress that it intends to admit 45,000 refugees in the coming fiscal year — the lowest cap ever sought by an administration since presidents got authority to set resettlement limits in 1980.

Another key difference in the new travel ban is that its restrictions have been placed indefinitely. Its predecessors simply placed 90-day freezes on travel, which were designed to give federal authorities time to study countries’ vetting processes in order to assess how much risk each posed to the U.S.

With this new order, the administration has signaled it has completed that process by identifying which countries it believes pose a significant risk. The administration’s publicly stated rationale is that determination centers on how well foreign countries comply with U.S. standards for verifying the identities and backgrounds of those seeking to travel here.

Article continues after advertisement

The U.S. Department of Homeland Security, in reviewing the “identity-management and information-sharing capabilities, protocols, and practices” of every foreign country, found the eight now on the list to be “deficient” — meaning that U.S. officials believe they don’t get enough information from them to determine whether it’s safe for one of their citizens to enter the country.

Prior versions of the ban didn’t do much to explain how countries can get off the list, fueling the argument it was an arbitrary order targeted at Muslims. With the new travel ban, the administration has been reluctant to specify exact steps countries can take to get off the list, other than generally making “improvements” in how they share information with the U.S.

Acting Homeland Security Secretary Elaine Duke, in an op-ed in USA Today, wrote, “This is not permanent. As foreign governments agree to enhance cooperation, we will lift restrictions as appropriate. This effort is one of several ways we are raising the bar of U.S. security across the board.”

The perception of general improvement, the administration said, is what prompted it to remove Sudan from the list of targeted countries. Public Radio International reports another possible reason: The administration last week ended “protected status” for Sudanese nationals in the U.S., which had protected them from deportation. Refugee advocates suggest Sudan got off the list under pressure to accept an influx of deported Sudanese from the U.S.

Still a Muslim ban?

The first two versions of Trump’s orders were defined by confusion and conflict. The January version, which led to travelers being detained in airports even if they were legal U.S. residents, was quickly blocked in court.

The revised March version was challenged but partially upheld by the Supreme Court before the scheduled October hearing; the court determined that people with a “bona fide” connection to a U.S. person or entity could travel here.

Nevertheless, at the heart of the political and legal case against the first two orders was that they amounted to a targeted, prejudiced restriction on Muslims entering the U.S. Not only did they target Muslim-majority countries, but Trump had repeatedly declared his wish to block all Muslims from entering the U.S. until authorities could figure out “what the hell is going on” with terrorism.

The scope of the first order, combined with Trump’s statements of intent, is what made the initial legal challenges that blocked it so successful.

Observers and experts say that with this latest order, the administration is giving itself cover from that line of attack: by expanding the group of countries to include Venezuela and North Korea, and by explaining more what its criteria are, the order could prove easier to defend in court.

Article continues after advertisement

But critics of the president aren’t buying that the new order is any different, or any differently intended, than before.

According to 5th District DFL Rep. Keith Ellison, “it is as much a Muslim ban as it was when he said he first wanted one.”

He was not moved by the inclusion of a country like Venezuela on the list. “It only affects their government employees and high-ranking officials,” he said. “It’s irrational because if the purpose of the ban is for national security, then what security threat do these people pose to the U.S.? None.”

Fourth District DFL Rep. Betty McCollum echoed that sentiment, referring to the order as “Trump’s Muslim and refugee ban.”

“No matter how the White House spins it, this ban blatantly targets immigrants based on religion and cruelly turns America’s back on refugees,” McCollum said in a statement.

Ryan Allen, a professor at the University of Minnesota who specializes in immigration, said the inclusion of North Korea on the list was “curious.”

“Many have pointed out that including those two countries as non-Muslim countries, by and large, is perhaps an attempt by the president’s order to skirt around some of these concerns around religion and that being the source for the ban,” Allen said.

“You can make a plausible argument that the inclusion of these two countries doesn’t take away the fact that the other countries are on this list, many would argue, is about a particular religion.”

Affecting immigrant communities

Despite its flaws, with these revisions, the travel ban may be on sounder footing than it ever has been. Third District GOP Rep. Erik Paulsen, who was a critic of the prior versions of the ban, said the new version “makes sense … I think they’re being more thoughtful about how they’re moving forward.”

Article continues after advertisement

The new order is certain to face additional legal challenges, but the Supreme Court took its scheduled Oct. 10 hearings about the travel ban off the docket. The court is now set to determine whether the new travel ban has rendered the existing cases against it moot.

Ellison said he didn’t think the new ban would be harder to fight in court “because it’s the same thing,” but added that the new version has elements that conservative justices could latch onto in justifying upholding it.

Allen said he expects much discussion to center on how exactly the administration determines which countries pose a risk, and if there are risky countries that are excluded from the current list. “If that’s what they’re hanging their hat on, are there other countries that are also inadequate in doing those things? Those are questions the courts would be interested in.”

There has already been an outpouring of criticism over Chad, a sparsely populated North African country, which was included on the list. Chad is just over 50 percent Muslim, and it cooperates closely with the U.S. in counterterrorism operations in the region. John Campbell, a former U.S. ambassador to Nigeria, told NBC News that Chad’s inclusion is “a matter of incompetence.” (McCollum, who has traveled to Chad, is pressing the administration on its inclusion on the list, according to her office.)

The new version of the ban is scheduled to take effect on Oct. 18. In the meantime, immigrant communities in Minnesota and elsewhere are already anxious and apprehensive about what it could mean for them and their families. National news outlets like the New York Times have reported this week from Somali enclaves like Minneapolis’ Cedar-Riverside neighborhood, speaking with residents fearful that relatives seeking to join them in the U.S. may never be able to.

Family reunification for many Somalis, Allen says, “looks like it’s no longer an option unless there’s an injunction on this ban. For many of the families here from Somalia originally, they’re having hopes about getting family members to safety dashed by this order that’s coming out.”

Micaela Schuneman, who operates refugee resettlement programs for the International Institute of Minnesota, says the current order, though it does not specify changes for the refugee program, has confused Minnesotans.

“We’ve been getting frantic calls from family members here who are waiting to be reunited with family members coming through the refugee program, because it’s just confusing,” she said.

“They didn’t know if this new order applied to their family members, they’re hoping family members can come before the changes. We’re not able to give them a lot of information yet.”