Sun Sentinel Palm Beach Edition
Experts: Challenging new travel ban will be tough
As soon as the White House announced it this weekend, advocates for immigrants roundly condemned the latest incarnation of President Donald Trump’s travel ban, vowing to fight what they described as an unconstitutional abuse of presidential authority.
But after months of swift victories blocking prior bans in whole or part in federal courts, opponents may face the greatest challenge yet in their attempt to put a stop to Trump’s newest travel order, which blocks nearly all travel from seven countries and a limited number of travelers from two others — most in the Middle East and North Africa.
“It’s clearly an uphill battle against this one,” said Peter Spiro, a constitutional and international law professor at Temple University. “This travel ban is detailed, more professional and a much tougher target for anyone to challenge.”
On Monday, the Supreme Court canceled arguments that were scheduled for Oct. 10 in the a case over the prior travel ban. Justices were supposed to hear lawyers for the Trump administration and immigrant rights groups make their cases regarding the ban, which had been found unconstitutional by district judges in Hawaii and Maryland and appeals courts in Virginia and California.
But major portions of that travel ban expired Sunday — replaced by the new one issued the same day — and the court ordered lawyers to submit letters on what should be done next. Experts say the court could decide the case is moot, leaving challengers who had fought in court since Trump’s initial January executive order on the ban to get a final decision on the president’s immigration authority from the highest court left to start over again in district court lawsuits.
The new travel measure, which takes effect Oct. 18 and will apply indefinitely, bans entry by most citizens of Chad, Iran, Libya, North Korea, Somalia, Syria and Yemen. It also imposes additional scrutiny on Iraqi travelers and blocks certain Venezuelan government officials and their relatives.
Sudan, whose nationals were previously blocked from coming to the U.S. under a prior temporary ban that largely expired Sunday, was dropped from the list. Chad, North Korea and Venezuela are new entries.
The new ban does not address a refugee ban that is still in place through late October, or address the soon-to-expire fiscal year cap on refugee admissions, which the White House has said it will announce in coming days.
Activists derided Trump’s previous bans as “Muslim bans” — named for the president’s campaign promise to suspend Muslim travel to the U.S. — and slammed by federal judges as unconstitutional for discriminating nearly exclusively against Muslims.
Experts said the addition of nations without Muslim majorities — North Korea and Venezuela — and Chad, which has a slight Muslim majority, hurt the argument that the ban is directed only Muslims. (The addition of North Korea is somewhat of a formality as, in practice, almost no North Koreans are currently allowed in the U.S., while the ban on Venezuelans is limited to a small sliver of the nation.)
Still, federal courts would be “more likely to hold that this version of the travel ban is legal,” said Stephen Yale-Loehr, an immigration attorney and law professor at Cornell University.
“The proclamation goes into depth about how the administration conducted its survey of other countries’ identity management and information-sharing protocols. The proclamation bars only certain people from certain countries, not everyone from a given country ... . And the new travel ban does not bar refugees from entering the United States,” he said.
The president’s first travel ban, issued Jan. 27, spurred tens of thousands of visa cancellations, chaos at U.S. international airports and dozens of lawsuits before it was blocked in court.