I hope I’m wrong. And that doesn’t mean don’t resist. But this ban is different than the two prior ones.
First – the affected countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Each country has their own restrictions – but no new immigrant visas for any of these countries except Venezuela. For other nonimmigrant visas, it varies – see this fact sheet for details.
Second – Nationals from affected countries who are in the US already, or have a visa already, have a green card, or are granted asylee status, or are admitted refugees are NOT affected by the new ban.
Third – there are much more express guidelines for waivers of the travel restrictions if one is subject to the ban. And you’ll need a waiver: unlike before, EO-3 travel restrictions are indefinite.
Fourth – the administration makes much ado about how it has created a vetting procedure that was the first of its kind in US history. That’s a load of horsecrap. You don’t put new tires on a car and claim you invented the automobile.
So here’s why I’m worried. Since this whole #MuslimBan saga began – back when Trump called for a “total and complete shutdown on Muslim immigration” – there has been an unbroken chain of religious animus. Trump himself kept sinking his own travel bans with his ridiculous tweets and posturing. Coupled with incompetence in implementation and crudity of the actual Executive Orders, it was short work for most courts in this country to ban the bans.
While I have no doubt the same religious animus flows into EO-3, this one is different.
- EO-1/2 weren’t based on specific factfinding. EO-3 is.
- EO-1 wasn’t tailored. EO-2 was somewhat tailored. EO-3 is much more narrowly tailored.
- EO-3 includes two token non-Muslim majority countries: Venezuela and North Korea. Legally, this makes it much more difficult to prove religious animus, despite Venezuela’s ban only affecting national leadership and their families, and North Korea – well, no one’s coming from North Korea anyway.
- There was a crude waiver process in EO-2, but a more detailed one in EO-3. Legally, this makes it harder to challenge since a court could find no right to bring challenge until the waiver process was completed.
A few months ago the 4th Circuit decided to keep EO-2 banned, but it was a fractured decision across 13 judges. The one that worried me the most was Judge Niemeyer. He dissented (meaning he would have upheld EO-2) but his reasoning was not unsound. I can see 5 Supreme Court justices siding with him: his position gave ample reason to not even get to the question of religious animus. That means the judicial spotlight remains dim, which increases the likelihood a court will not find a reason to strike EO-3. Add that to the fact that EO-3 does not suffer from many of the same deficiencies as its predecessors, and you’ve got a recipe for success.
The courts banning of EO-1 and EO-2 was heartwarming. But most folks don’t know the number of things that had to go wrong for the administration in order for those bans to be banned. The law of the land is, and has been, that the President does have sweeping (though not unbridled) authority to ban entry of noncitizens. While that’s eroded somewhat in recent years, it’s still very solid law.
I hate to say it. But EO-3 is what a legal Muslim ban would look like. Again – I hope I’m wrong.
Resisting EO-3 will look different. Like EO-2, it won’t be fought in the airports, but at consulates. We are going to have to create resources to navigate through the waiver process, backed up with federal court action at the hint of delay. Those with the know-how from the State Dept can weigh in on how to shed light on verifying that the administration did what it said: talked to every country to determine whether vetting procedures were sufficient.
I’m concerned that a legal challenge to EO-3 – if not successful – may either embolden the administration, create bad law, or both.