Travel Ban 3.0: We've Finally Achieved A Patina Of Legalism To Cover The Bigotry

Can you put the bigot back in the bottle?

(Photo by Jack Taylor/Getty Images)

Donald Trump has released his third attempt to ban travel to the United States on the basis of religion. Travel Ban 3.0 comes in the form of a 15-page Presidential Proclamation, and now places travel restrictions on “bad” countries indefinitely.

UPDATE: The Supreme Court has just cancelled oral arguments on the travel ban. It had been schedule to be argued on October 10th.

Two things are true about this new ban, and we need to be able to hold both in our head at the same time.

1. It’s still the same bigoted attempt to ban people on the basis of their religion and country of origin. Nobody should be fooled by this.
2. It’s probably fine. It’s bigoted and racist in the normal ways this country reserves its right to be bigoted and racist towards people we don’t like.

If the third ban had been the first ban, only astute observers would point out its fundamental flaws. Most people, and most white Americans in particular, would not hear this dog-whistle, because they never do. It’d be an uphill battle to get people to see the ugliness that they’d pretend a “normal” president was incapable of.

Of course, this travel ban is not our first rodeo. Donald Trump has told us, repeatedly now, that his real intention is to ban Muslims from traveling to this country. He told us he wanted a “complete and total shutdown” of Muslims entering this country. His first travel ban attempted to claw back the legal status of current permanent residents and valid visa holders, while preserving the rights of Christians living in Muslim-majority countries. His second ban included restrictions unsupported by any evidence of potential harm, and cynically banned people’s grandparents from visiting them.

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We all know what Donald Trump is trying to do. And we all know why he’s trying to do it. This isn’t about security or safety, this is about exciting his white base by throwing some Muslims who don’t live here to the lions.

And yet, this new ban is entirely better, and facially more legal, than anything that came before. Let’s look at the basics.

  • It has reasons. I know that’s setting the bar very low, but the previous travel bans were based on a nod/wink system that required us to just intuitively understand which countries were “bad” and know why. This one actually bothers to explain itself. The United States requires certain information from countries before giving visas to citizens of those countries. The United States has determined that: Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and (weirdly) the government of Venezuela, cannot meet those requirements. Hence, travel from those countries to the United States is banned or severely restricted. We can quibble over whether the requested information is necessary or appropriate as a policy matter, but requiring information IS A LEGAL REASON for restricting travel. It only took the administration three tries to come up with a legal fig leaf. Congratulations.
  • It treats different countries differently. Again, pretty low bar here. But recognizing the situation in Syria is different from the situation in Chad is a step in the right direction. Hell, recognizing that Chad is a place where things go down (Chad was not on the original list of banned countries), but Sudan is in a more stable situation (Sudan was on the original list of banned countries but is not now) is a goddamn TRIUMPH for this administration. Travel Ban 3.0 has a sliding scale of restrictions based on something approaching a fact-assessment of the banned countries. It’s not great, but it’s a start.
  • Countries can get off the list. Without, you know, requiring forced religious conversion of all its people. The structure of Travel Ban 3.0 is around the United States being able to know that the people traveling from these countries are who they say they are. So, if say Iran wants to get off that list, there are things that Iran can do that will get them off the list. They’re not things that Iran is likely going to be able to do, even if it wanted to. NOBODY BELIEVES that Iran is being held to the same standard that Serbia is being held to. Or Russia. But at least Iran now has something approaching a PROCESS for getting off this bigoted list if it wants to.

When Trump said that he wanted to ban people based on their religion, and people said “he can’t do that,” but some lawyers said “actually, there’s probably a way he can do that,” THIS is what they were talking about. THIS is how you ban people based on their religion and country of origin, without setting off a Constitutional firestorm. If we had started here, they’re be a lot of legal challenges and consternation, but this would probably sneak through divided courts without too much trouble.

But we didn’t start here. So now the question becomes whether courts will take this ban at face value — a face value which is pretty awful but not leaps and bounds beyond the normal level of international bigotry the United States always feels comfortable exporting to the Muslim world — or if courts are going to say “I see what you did there.”

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In terms of the pending Supreme Court travel ban case, Travel Ban 3.0 probably resets the procedural movement to zero. The government is going to defend the president’s right to make Travel Ban 2.0, the states will say Travel Ban 3.0 has all of the problems of its previous iterations. The Court can rule on it, but the most likely thing would be to kick this all back to the lower courts as we are now truly dealing with an entirely different set of facts.

It’s also of note that Travel Ban 3.0 does not address the Refugee Ban. So that’s still a live issue for oral arguments that are scheduled to go forward on October 10th and 11th.

Travel Ban 3.0 is the realization of a fear many people have of this legislatively impotent administration: if they keep throwing executive feces at the Constitution, eventually some of it will stick.

Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats [Whitehouse.gov]


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.