TRUMP’S TRAVEL ORDER, TAKE 3
Donald Trump has done a lot to raise suspicions of bad motives in formulating his policy for preventing terrorists from coming into the United States. But the new travel policy unveiled by his Department of Homeland Security suggests the administration may have finally figured out how to address the matter in a serious and legally defensible way.
Everything the president does here is shadowed by his irresponsible campaign promise to impose “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.”
Explicitly discriminating against Muslims would have been unconstitutional. When the administration abruptly issued a travel order just days after taking office, it didn’t mention religion, but the countries it targeted were all predominantly Muslim, and courts suspended enforcement. DHS responded with a revised and somewhat narrower version, but it, too, was blocked by federal courts, which said it appeared to be another poorly disguised attempt to disfavor Muslims.
We don’t know whether the order issued Sunday will convince the courts that the administration has finally given up that illegitimate attempt. Certainly, it would have been received better back in January than the original policy was. This version came only after DHS had, by its account, “conducted a worldwide review of information-sharing practices” and used that data “to establish a new information-sharing standard that protects U.S. national security.”
Other governments that failed to meet the new standard were given the chance to make changes, and some were able to satisfy DHS. This policy indefinitely bans most entries from Syria, Iran, Libya, Yemen, Somalia, Chad and North Korea — the latter two of which were not on the previous list. Some Iraqis and Venezuelans also will be denied. Sudan, which was on the previous list, is off.
This effort is a definite improvement. In the first place, it came after the research was done, not before, and the new criteria reportedly are based on that information. DHS says all the nations affected by the restrictions lack the controls required to screen out people who pose a danger. Nations that fell short in the initial review were given the chance to correct their deficiencies to avoid inclusion. And the order spells out what governments must do to get off the list.
On its face, this indicates a reasonable, evidence-based approach. But critics of the earlier versions, such as the American Civil Liberties Union and the International Refugee Assistance Project, are not mollified. The administration’s record means judges will give it a thorough scouring for evidence of bad faith.
DHS will have to demonstrate that it formulated and applied its criteria impartially toward non-Muslim countries as well as those that have Muslim majorities. It will have to show that the threats it identifies are real and that the new policy will reduce them. It may have to confirm its willingness to drop the limits on countries that upgrade their procedures.
Temple University immigration law professor Peter Spiro told Bloomberg, “If this had been travel ban 1.0, it would have been bullet-proof. The combination of Trump’s anti-Muslim comments and the completely blundering way in which the first order was issued make the new action much more vulnerable than it would otherwise be.”
Maybe the president will learn some valuable lessons, such as: Words matter. Haste makes waste. And it’s a lot easier to do something right the first time than to undo a botched job.