The Trump administration’s new travel ban policy may soon spark new lawsuits, though it’s already a subject at the U.S. Supreme Court.
After the White House issued a new policy as parts of the March 6 travel ban expired Sunday, the Supreme Court on Monday removed upcoming oral arguments over the executive order set for Oct. 10. The court directed the parties, including the state of Hawaii, the federal government and various advocacy groups, to file supplemental briefs on whether and to what extent the case is now moot. The briefs are due by noon Oct 5. Solicitor General Noel Francisco filed a letter with the court Sunday requesting the supplemental briefing schedule.
“This action by the Supreme Court is not surprising given the government’s decision to issue a new version of the ban at the eleventh hour,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, in a written statement. “Both sides will address the implications of that new ban order for the existing case in written submissions to the court. The ban has been repeatedly held unconstitutional and illegal by the courts and those decisions remain in place today.”
The new travel restrictions provide additional issues and details for lawyers and judges to unpack should it become the subject of litigation.
On a call with reporters Monday morning, lawyers from the National Immigration Law Center and other civil rights organizations said the administration’s new proclamation is simply a revised version of the “Muslim ban” the president promised during the campaign.
“This latest ban is another example of this administration’s xenophobic agenda and does nothing to change the fact that this started out and remains a Muslim ban. Our Constitution is intended to ensure that all of us, regardless of where we were born, how much we earn, or how we pray, are be able to live in the United States without fear that our government will treat us any differently than anyone else,” said Avideh Moussavian, a senior policy attorney at the National Immigration Law Center.
So what’s really changed? Here’s what we know about Travel Ban 3.0:
Policy changes: There are several key changes to the travel restrictions. The March 6 order was temporary, and suspended immigrants and nonimmigrants from certain countries from entering the United States for 90 days, and 120 days for refugees. Trump issued that order after his first travel ban, issued Jan. 27, was enjoined by the Ninth Circuit in February.
The new policy is indefinite, and does not address refugees. Five of the countries from the March 6 order still face restrictions in the new policy: Iran, Libya, Somalia, Syria and Yemen. The proclamation drops Sudan from that list, but adds Chad as well as two countries that do not have a majority Muslim population, North Korea and Venezuela.
Countries can only be relieved of the restrictions if they comply with the administration’s baselines for information-sharing, according to the proclamation. The restrictions are “continuing” for those who would have been barred from travel by the March 6 order. For those newly affected, the policy is effective Oct. 18.
There are certain exceptions for each country. For example, Iranians with student and exchange visitor visas are exempt. The restrictions on Venezuelans only apply to government officials and their immediate family members. A White House fact sheet outlines the rules for each country and justifications for those rules.
The government’s justification for the new policy: The White House said the new restrictions are the result of a global review of vetting procedures. That review was a directive from the president’s March 6 executive order, which barred entry of nationals from six majority-Muslim countries while the review took place.
The administration said the new restrictions bar entry for nationals from countries whose foreign governments do not provide enough information to the United States to allow officials to properly vet their immigrants. Meanwhile, it’s important to note that the government’s justification for the March 6 travel ban order was that travel from certain countries needed to stop pending the review.
Two circuit courts enjoined that order, in part ruling the administration did not properly justify the ban. The Supreme Court stayed those injunctions in June, except with respect to certain family members and those with “bona fide” connections to the United States, and the review moved forward.
Possibility for new litigation: Though states and civil rights groups launched lawsuits over the first two travel ban executive orders within a day or two of their announcements, groups have yet to promise lawsuits over the new restrictions.
Justin Cox, a staff attorney with the National Immigration Law Center who is involved with the ongoing Supreme Court travel ban litigation, said Monday that it was “too early obviously for us to have any concrete plans.” However, Cox said his organization’s “clients will continue to be injured by this iteration” of the policy.
Advocates said the addition of North Korea and Venezuela, which don’t have majority Muslim populations, were largely symbolic. The restrictions only apply to government officials from Venezuela, and very few North Koreans immigrate to the United States due to restrictions from their own country.
Asked why the new restrictions still amount to unconstitutional discrimination against Muslims, Cox said it all goes back to the president’s December 2015 call for a blanket ban on Muslims entering the country and subsequent public comments.
“There’s a very simple question that I think answers this, which is, if Donald Trump had not promised to ban Muslims, would we be doing this? Would this policy be promulgated? If someone else was president, would this be happening? … The answer is no,” Cox said.
But Trump’s nearly two-year-old promise might not be enough, said Ilya Shapiro, a senior fellow in constitutional studies at the libertarian-leaning Cato Institute.
If civil rights groups or others do challenge the policy in new litigation separate from the Supreme Court case, Shapiro said it’s possible the lower courts will be less friendly to plaintiffs given the detailed, country-specific restrictions and justification the government provided for each.
“Whatever the legality or constitutionality of the [order] that had been at issue, this one is on firmer legal ground,” Shapiro said. “First of all, it’s not just Muslim countries on the list now, and, secondly, it does look like these are actions that it’s hard to say are arbitrary. This is very specific.”
University of Texas School of Law professor Stephen Vladeck agreed that the latest version of the travel ban “does seem to be grounded in stronger, or at least more superficially compelling, national security arguments.”
But Vladeck noted the revision of the policy is suggestive in and of itself.
“At the same time, the fact that we’re onto version 3.0 might leave some courts skeptical that the new arguments are anything other than post hoc rationalizations of an otherwise illegitimate policy,” Vladeck said in an email. “I think it’s a close call, and one likely to divide courts that have largely been united in their rulings against the bans to date.”