Travel Ban 2.0 is the name given to the amended version of the executive order pausing refugee access from 6 predominantly Muslim countries. It has been issued on March 6th and will go into effect on March 16th. Yet it is being already challenged in the state of Hawaii that wishes to strike it down before it goes into effect.It replaces the previous homonymous executive order published
The new travel ban replaces the previous homonymous executive order published on January 27th and stopped by a temporary restraining order issued by federal judge James Robart. Judge Robart determined that some individuals, companies, and universities in the state of Washington would have been irreparably damaged by the executive order.
Also, the first executive order had been poorly implemented, without proper notice to enforcement agencies and created confusion as to the status of people who had a dual citizenship, a green card or valid visas and who came from the original 7 countries.
The restraining order was challenged by the federal government and upheld by the 9th Circuit Court of Appeal with an extensive sentence that established the following criteria.
- The temporary restraining order could not be appealed without first challenging it in court. Therefore the government could not get it re-enacted in the short term. The Court of Appeal accepted to review it to establish if it possessed the qualities of a preliminary injunction.
- Individual states have a standing against the federal government in representing the interests of companies or universities within that state that are damaged by actions taken by the federal government.
- People who have been granted a green card or a visa have a right to due process. This also applies to immigrants that are in the US illegally.
- The judiciary branch has the right to review any activity or regulation enacted by the executive branch as far a constitutionality.
- Limiting the geographic scope of the TRO would lead to a fragmented immigration policy which would be contrary to the constitutional requirements for a uniform immigration law and policy.
- While the public and the government have powerful interests in national security and in the ability of an elected president to enact policies, they have also an interest in free flow of travel, in avoiding separating families and in freedom from discrimination.
The Changes in the New Version of the Travel Ban
The travel ban 2.0 has addressed several of the above-mentioned points so to be “bullet-proof”. First of all 10 days were given to evaluate its content and to coordinate its execution. The content of the new travel ban was also carefully coordinated between the Department of Homeland Security, the Department of Justice and the State Department. Several representatives from Congress and from the enacting agencies were also involved to avoid any confusion.
The new travel ban exempts green card holders, visa holders and reduces the countries to 6: Lybia, Yemen, Sudan, Somalia, Syria, Iran. The exclusion of Iraq is justified by the fact that this country is now able to provide adequate vetting.
The government has also provided evidence of the fact that refugees which entered the USA constitute a security threat. 300 out of 1,000 terrorist suspects being investigated in the USA, entered the country as a refugee.
Where Are the Possible Weak Spots
All religious reference have been removed from the text. No indefinite ban has been applied to the refugees from Syria. All refugees from the 6 countries have been equally suspended from entering the US for 120 days. New visas won’t be issued in these 6 countries. The DHS and the Department of State will wait for these countries to apply proper vetting practices.
The travel ban 2.0 does not fully resolve the point 5 above. It still limits the entry to specific geographic locations rather than groups of individuals. This remains a major weak spot also because it is contradicted by an adversary intelligence brief from DHS.
Politically it has been attacked as a new edition of the so-called “Muslim ban”. Yet it targets a small percentage of the overall Muslim population in the world.
Hawaii First to Challenge the New Travel Ban
Hawaii’s Attorney General Doug Chin filed yesterday a legal challenge in the federal district court in Hawaii. Lawyers from this state argued that
“the new executive order is resulting in the establishment of religion in the State of Hawaii contrary to its state Constitution.”
They also claim that
“economy, educational institutions, and tourism industry; and it is subjecting a portion of the state’s citizens to second-class treatment and discrimination while denying all Hawaii residents the benefits of an inclusive and pluralistic society.”
They will move for a temporary restraining order. The hearing is set on March 15, just one day before the new travel ban goes into effect. Hawaii was one of the several states that contested the first travel ban in court. Any appeal on this possible TRO would still be judged by the 9th Circuit Court of Appeal. More challenges are very likely to follow after this one.
New York Attorney General Eric Schneiderman, who filed suit against Trump’s original immigration ban, says he’s ready to litigate.
A Political Battle Fought in Court
The government will probably argue that it has the constitutional and statutory right to temporary suspend access to the USA. In the previous appeal, it argued that it has discretionary judgment as per law 212(f) of the INA, 8 U.S.C. 1182(f) which states:
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
It is possible that this new version of the ban will also be suspended. And we know that any suspension will be challenged by the government. The DOJ has actually dropped the appeal on the first version so to concentrate on this new one.
Many of the refugees which were seeking access to the USA have already entered the country during the stay of the first ban.
A Symbolic Document That Keeps Widening Its Impact
Therefore this is now becoming a symbolic document at the center of a fierce and unrelenting political battle. It also introduces new rules that were absent from the first version.
This is becoming the subject of opposition by lawyers and AG’s in also other states.
More states that are antagonistic to this policy could join the battle. It is now a day-to-day reality that immigration law and procedures are interpreted and challenged by federal judges. Some of them support the federal government and some opposing it. A very volatile situation that will generate major confusions.