Trump's streamlined travel ban still faces stiff headwinds

While the White House touts national security as justification for its revised temporary ban on travel from six Muslim-majority nations, opponents are likely to challenge the order in the courts.

It might be called the kinder, gentler travel ban – but don’t expect the revised version of President Trump’s executive order aimed at keeping Islamist terrorists out of the country to quell opposition and end legal challenges.

In the eyes of critics, it’s still an unconstitutional Muslim ban.

The new order Mr. Trump signed at the White House Monday now targets six Muslim-majority countries – Iraq was dropped from the list of seven countries in the original order signed Jan. 27 – and still suspends the resettlement of refugees for 120 days.

But the new executive action specifically exempts US green-card holders and other foreigners in possession of a valid visa. It no longer singles out Syrians for indefinite suspension from entry. And it will not take effect until March 16 – a delay aimed in part at avoiding the mass confusion that ensued at the nation’s international airports when the first order took effect immediately.

The revised order also allows immigration officials to issue visas to individuals from the six temporarily banned countries on a case-by-case basis – for example, for students and work-visa holders, or children and individuals requiring urgent medical care.

In addition, the new order no longer prioritizes the resettlement of religious minorities – read Christians, by and large – from those six Muslim-majority countries. That prioritization was one of the key features of the original order that had critics and some jurists concluding the travel suspension was actually a Muslim ban that would not pass constitutional muster.

“This is not a Muslim ban in any way, shape, or form,” a senior Department of Homeland Security official said Monday on a conference call with reporters. The call also included senior officials from the State Department and Department of Justice. The fact that the ban does not affect the vast majority of the world’s 1.6 billion Muslims is proof the measure is not a Muslim ban, the DHS official said.

The six countries carried over from the original 90-day travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Aiming for national security

What the executive order is, administration officials say, is a legitimate exercise of executive authority to keep Americans safe. And given the very senior level at which administration officials weighed in on the order, it appeared the administration intends to zero in on the president’s prerogative and duty to take steps to enhance national security. 

“With this order, President Trump is exercising his rightful authority to keep our people safe,” Secretary of State Rex Tillerson said Monday morning. “This order is part of our ongoing efforts to eliminate vulnerabilities that radical Islamist terrorists can and will exploit for destructive ends.” Secretary Tillerson appeared on a Washington stage with Attorney General Jeff Sessions and DHS Secretary John Kelly.

All three cabinet members gave statements in support of the new executive order but left the stage without answering reporters’ questions.

Indeed, in an effort to strengthen the national security justification for the travel ban, the new order specifies that the six countries listed are either failed states where enhanced vetting of visa applicants is problematic and where governments do not have full control of national territory, or are state sponsors of terrorism.

Iran and Sudan are listed by the State Department as state sponsors of terrorism.

Trump appears to have hinted at this ramped-up national security justification for the travel ban when he said in his speech to Congress last week that it is “not compassionate but reckless to allow uncontrolled entry from places where proper vetting cannot occur.”

Why Iraq was dropped

Officials said Iraq was dropped from the list of countries subject to a 90-day travel ban because of its strides over the past month to address shortcomings in citizens’ documentation. Tillerson said the government of Iraq had joined with the US in an “intense review” that had identified “multiple security measures” the two countries would take to enhance the vetting of Iraqis seeking entry to the US.

At the same time, Tillerson seemed to acknowledge the objections the Pentagon and State Department had raised over inclusion in the original ban of a country whose military is battling the Islamic State alongside US soldiers.

“Iraq is an important ally in the fight to defeat ISIS, with their brave soldiers fighting in close coordination with America’s men and women in uniform,” Tillerson said. 

As justification for the suspension of refugee resettlement, the new order cites 300 FBI cases where individuals who entered the country as refugees are under investigation for terrorist activities. The officials would not specify how long ago those 300 individuals entered the country, whether they still hold refugee status, or how many of the 300 were from the six countries named in the ban.

“The salient fact here is that there were 300 individuals admitted and welcomed to the United States as refugees… and either entered with hostile intent or were radicalized in the United States,” the DHS official said.

Like the original order, the new executive action suspends the refugee resettlement program for 120 days, while reducing the number of refugees to be accepted by the US this fiscal year from the 110,000 figure set by President Obama last year to 50,000. Trump administration officials have said that about 35,000 refugees have already been admitted since the beginning of the fiscal year in October.

Yet if the swift objections raised to the revised immigration order are any indication, its implementation could be as problematic as the previous one, which was suspended by a federal judge Feb. 3. That suspension was subsequently upheld by a federal court of appeals.

Will US be less safe?

Targeting the administration’s national security justification for the order, many critics say the travel ban would actually make the country less safe.

“A watered down ban is still a ban. Despite the Administration’s changes, this dangerous executive order makes us less safe, not more, it is mean-spirited, and un-American,” said Senate minority leader Chuck Schumer (D) of New York in a statement. “It must be repealed.”

Some say the revised travel order will be counterproductive because it will raise tensions with Muslim countries whether or not they are affected by the ban, while playing into the propaganda efforts of terrorists, particularly anti-Western jihadists.

“This clear attempt to exclude Muslims from entering our country undermines core American values, opens the door to further discrimination against Muslim-Americans here at home, and provides a recruitment tool for terrorists around the world who seek conflict with the United States and its allies,” says Stephen Miles, director of Win Without War, an advocacy group that promotes a national security based on American values.       

Critics also question whether the revised order will address the objections of federal courts over the original order. The Ninth Circuit Court of Appeals noted in upholding the federal court suspension that none of the foreigners found to have carried out terrorist attacks in the country was from the countries subject to the travel ban.

Trump’s revised order may smooth over the rough edges of the original version, national security experts say. But some concur with critics who say the tenor of the measures is likely to undermine rather than enhance security.

“Even though this order is calmer, more professionally executed, and less likely to cause mass chaos that its predecessor, its issuance marks a sad day for American leadership in the modern world,” says David Schanzer, an expert in domestic radicalization who is a professor at Duke University in Durham, N.C., and director of the Triangle Center on Terrorism and Homeland Security. 

Combined with other Trump actions taken in the name of national security, Professor Schanzer says the order “symbolizes that America fears engagement with the outside world and believes national security is advanced by building barriers that isolate America. This withdrawal of American leadership,” he adds, “will make the world a more dangerous place.”