Travel Ban 3.0 Remains Unconstitutional, Professors Say


In the nine months since President Donald Trump signed an executive order barring citizens of six Muslim majority countries from entering the United States, a pattern has emerged in the travel ban fight between him and the federal courts. Trump’s administration unveils a new ban, federal courts declare it unconstitutional, and then Trump moves the goalposts with a new version, challenging the courts to keep up.

On October 10, the United States Supreme Court sent travel ban challenge Trump v. International Refugee Assistance Project back to the Fourth Circuit Court of Appeals with instructions to dismiss the case as moot, due to changes offered via the third ban. Such an outcome was also possible for the Ninth Circuit Court of Appeals ruling in Trump v. Hawaii—a challenge to a Trump refugee ban expiring Oct. 24. The Supreme Court cancelled scheduled Oct. 10 oral arguments on challenges to the first two travel bans, after the administration announced its latest travel ban iteration on Sept. 24.

Travel Ban 3.0, initially scheduled to go into effect today, targets five previously included Muslim majority countries plus new additions Chad, North Korea, and Venezuela with an indefinite ban, as opposed to the 90-day review period prescribed in Trump’s original executive order. Now that the Supreme Court has rendered the second ban moot, a new series of cases in the lower courts is emerging. This past week, federal district court judges in Hawaii and Maryland have issued decisions questioning the legality of the latest ban. In the Hawaii case, Judge Derrick Watson issued a nationwide order enjoining Travel Ban 3.0, the day before it was scheduled to go in effect. Judge Theodore Chuang in Maryland granted a preliminary injunction nationwide.

While the Trump administration suggests national security concerns spurred the new indefinite ban, critics such as Fordham Law Professor Catherine Powell and Fordham Law Visiting Professor Corey Brettschneider argue that at its heart, the third ban is driven by the same anti-Muslim animus that resulted in federal courts declaring the first two versions unconstitutional.

“It’s like the old saying goes, ‘You can put lipstick on a pig, but it’s still a pig,’” said Powell, who coordinated refugee policy for the Obama White House’s National Security Council. “The third ban is still geared toward appealing to Trump’s base, and is still discriminatory toward Muslims.” In this past week’s Hawaii case, Judge Watson pointed to its discriminatory nature and noted that it undermines “the founding principles of the Nation.” In the Maryland case, Judge Chuang wrote, “When the government chooses sides among religions, the inevitable result is hatred, disrespect, and even contempt from those who adhere to different beliefs.”

Brettschneider, along with University of Virginia Law Professor Micah Schwartzman and Cornell Law Professor Nelson Tebbe, organized an amicus brief to the Supreme Court arguing that Travel Ban 2.0 was unconstitutional because of “the long-settled prohibition on governmental acts based on animus toward a particular religious group.” The brief included the signatures of 45 constitutional law scholars, including Powell and fellow Fordham Law Professors Abner S. Greene and Ethan J. Leib.

While Travel Ban 3.0 includes two non-Muslim majority nations, North Korea and Venezuela, their inclusion, according to Brettschneider and Powell, is fairly meaningless—the net migration from North Korea is practically zero, and only government officials from Venezuela are banned.

Brettschneider described the inclusion of North Korea as “cover” for the “blatantly unconstitutional” ban’s true purpose, noting that the country sends very few people to the United States.

“It’s an interesting legal maneuver because it looks like a pretext to make the ban constitutional,” Brettschneider said. “The courts should see through that.”

Brettschneider and Powell agreed that if protecting national security was the ban’s true rationale, then Saudi Arabia or Pakistan would be on the list. Furthermore, including Chad in this latest ban may turn out to actually undermine U.S. interest, as it has been a key partner in counter-terrorism—fighting Al Qaeda and Boko Haram for years, with one of the strongest militaries in the region. Already, in the aftermath of Travel Ban 3.0, Chad has pulled troops from the fight against Boko Haram in Niger.

Besides Chad, the other Muslim majority nations on the ban list are Iran, Libya, Somalia, Syria, and Yemen. The Sudan and Iraq were featured in previous bans, but have been removed.

Amicus Brief Explained

The arguments outlined in the amicus brief for the second travel ban applied animus doctrine developed in other areas, such as LGBTQ rights and the Free Exercise Clause, to Trump’s statements prior to the first and second travel bans. Those arguments still apply to the third ban, Brettschneider said—namely, that statements Trump made, whether on Twitter, his campaign web site or at rallies, illustrated the “principal motive” for the ban was anti-Muslim animus. For instance, then-candidate Trump’s “Statement on Preventing Muslim Immigration” on his web site called for a “total and complete shutdown of Muslims entering the United States.”

The Constitution prohibits governmental action based on animus toward disfavored religions, the brief noted. Trump’s views contradict the Establishment Clause, which forbids the government from acting on the basis of animus toward any particular religion. The brief also applied the Free Exercise Clause and the Equal Protection Clause to strengthen its case. As the arguments still apply to the third ban, Brettschneider said he and the brief’s other organizers would consider submitting a new version to the Supreme Court should the Court invite it.

As Travel Ban 3.0 loomed on the horizon, Brettschneider described the litigation that has occurred to this point as a partial success. It has pushed the White House to revise its ban twice, he explained. In addition, the Supreme Court found in June that it is likely unconstitutional to ban people from countries if they have a “bona fide relationship” in this country.

The Fourth Circuit also cited the brief multiple times in its May 25 ruling. Chief Judge Roger L. Gregory declared in his majority opinion that the ban “drips with religious intolerance, animus, and discrimination.”

Trump’s anti-Muslim statements on Twitter provide “clearer evidence of his motives” than policies vetted by administration officials, Powell observed. Her research of white supremacist sites in the wake of Trump’s election shows that they are thrilled with his racially divisive comments, whether he’s expressing anti-Muslim sentiment, calling Mexicans “rapists,” or saying that there were “very fine people” among the white supremacists who marched in Charlottesville, Virginia.

“It’s fairly clear that Trump is mainstreaming white nationalism, and the travel ban is part and parcel to that strategy,” Powell said.

A Misdirected Policy

In his widely circulated announcement on Oct. 10, Hawaii Attorney General Douglas S. Chin wrote that Travel Ban 3.0 “exceeds the limits of the president’s exclusion authority that have been recognized for nearly a century, by supplanting Congress’s immigration policies with the president’s own unilateral and indefinite ban.”

Trump’s lawyers contend that the plenary powers doctrine, which says the legislative and executive branches have sole power to regulate all aspects of immigration as a basic attribute of sovereignty, provides him control over such matters. The Supreme Court’s ruling in Chae Chan Ping v. United States (1889) ultimately led to the plenary powers doctrine.

Brettschneider, however, contests this interpretation of presidential powers, noting that the modern Equal Protection Clause did not exist at the time of Chae Chan Ping, and as such the legal basis for the president’s decision-making on immigration has changed.

Therefore, Trump must show a rational basis for banning citizens from the countries on his ban list.

“The president is not above the law,” Brettschneider said. “He is bound by it.”

Each president faces unique challenges balancing national security concerns with human rights obligations aiding refugees, Powell reflected. But, the Trump administration’s blanket bans are “rather extreme,” she said. For instance, the original travel ban prevented Iraqi nationals from entering the United States, thus preventing those who served as translators or drivers for U.S. soldiers from receiving special immigrant visas.

A couple days after Trump issued Travel Ban 3.0, he submitted a report to Congress proposing to slash refugee admission by more than half—from 110,000 in 2016 to 45,000 in 2018, the lowest ceiling level since 2006. “The new refugee ceiling will limit access for refugees fleeing persecution,” said Powell said, who recently blogged on the new travel and refugee restrictions. A more robust State Department could address the underlying reasons why people flee their countries, by supporting political and economic conditions necessary for people to feel their home countries are viable places to stay.

“Overall, the travel and refugee restriction represent misguided immigration and foreign policy,” Powell said.


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