The revised Trump travel ban may satisfy the White House and its supporters but it remains to be seen whether the edict comports with the Constitution.
In an executive order issued Monday, the administration prohibits visits to the U.S. by people from six predominantly Muslim countries. The order, which supersedes an order issued Jan. 27, includes a series of changes that are designed to withstand court challenges. The changes include a recitation of the allegedly heightened risk that visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen present to national security.
The danger “of erroneously permitting entry” of a visitor from one of the six countries who may intend to commit an act of terror “is unacceptably high,” the order tells us. Yet it contains nothing that ties nationals from the affected countries directly to threats of terrorism within the U.S.
Country of citizenship “is unlikely to be a reliable indicator of potential terrorist activity,” the intelligence arm of the Department of Homeland Security (DHS) concluded in a three-page report published in February by the Associated Press. Of 82 people who engaged in activity inspired by a foreign terrorist organization since the start of the Syrian conflict in March 2011, “slightly more than half were native-born United States citizens,” according to the analysis, which DHS has termed incomplete.
The revised travel ban does include a recitation, purportedly culled from reports published annually by the State Department, that describes conditions that can breed terrorism generally in each of the six countries. But as the Economist observes, “the edit has the flavor of a student essay whose first version contained no support for its thesis and has been patched up with a visit to a couple of websites. The logic behind categorical bans from particular nations remains dubious.”
Like the order its replaces, the revised ban also suspends for four months the admission of refugees into the U.S. “The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation,” the president writes in the revised order. But “without any context, this 300 figure is meaningless,” the Washington Post noted.
That leaves the order vulnerable to a conclusion by the courts that it remains motivated by discrimination. “The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” a three-judge panel of the Ninth Circuit wrote in its Feb. 9 ruling denying the administration’s request to reinstate the ban after a federal judge in Seattle blocked its enforcement nationwide.
What’s more, the appeals court noted, the states that challenged the initial order offered evidence of “numerous statements” by the president of his intent to ban Muslims from entering the country. With its lack of evidence tying the travel ban to an actual threat to national security, the revised travel ban does little to undo that conclusion.
Washington state Attorney General Bob Ferguson, who sued to block the ban, said in a statement Monday that his office was reviewing the revised order to determine its impact on the state and his office’s next legal steps.