Just a week into the new Trump Administration, the President issued an Executive Order temporarily barring foreigners from selected largely Muslim countries from entering the United States. Chaos ensued at airports around the world. A federal judge in Seattle issued a nation-wide temporary restraining order blocking implementation of the Order. The government appealed this decision to the Ninth Circuit Court of Appeals which upheld the lower court’s ban on the travel ban. Many people, including myself, urged the administration to withdraw the initial Order and start over with a more thoughtful approach.
And there the matter stood for over a month while the Administration debated what to do next.
On Monday, President Trump issued a new and “improved” travel ban after delaying its announcement from the previous Wednesday to Friday and then again to Monday so as not to take the shine off the President’s generally well-received State of the Union speech. Further delaying the ban is the fact that it will not take effect until March 16, at which time presumably the original ban will be rescinded. The State of Hawaii already has filed suit challenging the legality of the revised Order. Other lawsuits are sure to follow.
The revised Order attempts to clean up major flaws in the original Order, most importantly, clarifying that it does not apply to green card holders and other permanent residents or existing visa holders. While this clarification is likely to make the Order more palatable to the courts, a major challenge remains viable based on the charge that the Order was motivated by religious animus towards Muslims, which claim is in turn based on the actual words of President Trump during the Presidential campaign. It is highly likely that the liberal Ninth Circuit court of appeals will once again ban the ban.
The Administration’s own slow pace and self-imposed delays in rolling out the revised Order will be partly to blame as it seriously undercuts the Administration’s claim of the urgency of imposing the ban. Keep in mind that the order, both in its original form, and its revised version, is designed only to create a temporary “pause” of ninety days in travel from the selected countries. During this ninety day pause, the government plans to devise another scheme for “extreme vetting” of individuals from the affected countries.
A key factor in the courts’ decisions during round one was the Administration’s inability to point to any evidence that such a “pause” was necessary. The government was unable to produce any evidence that persons from the selected countries posed a higher risk of engaging in terrorism than individuals from other countries. Nor did the government explain what was wrong with the present already stringent system of vetting persons (which often takes up to two years) from the selected countries that requires a temporary, total ban for ninety days while more “extreme” vetting procedures are devised.
While the administration attempts to bolster its case for its revised Order with new evidence, the evidence presented is weak and does not provide a rational basis for the selection of the particular countries whose citizens are barred from entering the United States (omitting Saudi Arabia and Pakistan, two of the most notorious countries from where terrorists originate). Indeed, a recent report from the Department of Homeland Security itself undermines any notion that persons from the selected countries pose a unique threat to this country. A senior administration official immediately dismissed the report inexplicably stating: “the president asked for an intelligence assessment. This is not the intelligence assessment the president asked for.”
All of which leads to one critical question and an inevitable conclusion. Why is the Administration expending valuable time and taxpayer resources to implement a temporary travel ban so that it can then use the ninety day “pause” in the Order to come up with a more “extreme vetting program?” After all, the Administration wasted six weeks defending the first version and is likely to spend at least that much time warding off challenges to travel ban 2.0. There goes almost the entire ninety-day “pause” the government says it needs to devise a new “extreme” vetting program for these countries. Why has the administration wasted that time defending a temporary pause instead of actually coming up with the new vetting program it claims is necessary? That program, when finally introduced, is sure to be challenged in the courts as well. Why not get on with the main show and avoid all this drama with preliminary bouts? It is time for the Trump Administration to demonstrate what it means by “extreme vetting” - - if, indeed, it has any idea what that means.
And there’s the rub. It is unlikely that the government has any notion what a constitutionally acceptable “extreme vetting” program would look like. Otherwise, it would just institute one. Rather, it should be anticipated that, upon the expiration of the ninety day pause envisioned by the temporary ban, the government will seek an extension of that ban, and then another, and then another, adding countries to the list as it goes along, so that, in effect, the temporary travel ban will become the permanent Muslim ban Trump promised during the Presidential campaign. If that is, in fact, their design, the Trump Administration and the Justice Department should come clean to the courts and the American people so that an honest, open debate on this critical question of national security can begin.
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Steve Frank is an attorney and writer who, until he recently retired, served for over 30 years in the United States Department of Justice. He briefed and argued over 100 cases in the federal courts of appeals.