A few weeks ago, I analyzed the original travel ban, explaining the three ways in which it was unconstitutional, as well as what changes would enable a new ban to satisfy existing constitutional standards. Well, three weeks later, the Trump Administration finally got around to signing that new EO, and so I wanted to take the opportunity to compare my analysis with the final product. In sum, while the new ban goes a long way in tailoring itself to the Ninth Circuit’s issues with the original ban, its true raison d’etre might ultimately be its undoing.
In my initial article, I identified three ways in which changes to the ban would could come as close as possible to constitutionally curing it: 1) exempt current Green Card and Visa holders, 2) eliminate the exemption for minority religions, and 3) explain the rationale for the ban and/or tweak the countries on the list. The new EO basically does all of that, or at least tries to, with the third area being the weakest, as I will explain below.
First, the new EO adopts the first two changes entirely. In fact, the new EO goes even further in avoiding due process issues by rolling out the EO’s restrictions over a week or two. In taking the above steps, the administration has basically immunized itself to Due Process challenges, which was the theory on which the Ninth Circuit relied entirely. Moreover, while the specter of a religious-based Equal Protection claim still exists – based on Trump’s comments on the campaign and the ban’s shoddily-stated justifications – a religious discrimination claim is severely undercut by what is now facially-neutral language in the ban. Unfortunately, the religious discrimination claim will likely be a tough sell. I will get to that in a minute.
The one area where the Trump Administration’s actions were puzzling pertained to the third area: explaining the rationale for the ban and tweaking the list of countries subject to the ban. The Administration did include in the EO a list of purported reasons why the ban is apparently necessary, and they did tweak the list by excluding Iraq. But any rational person can tell that they have issues here. After claiming in Ninth Circuit briefing that a preliminary injunction would harm America because we could not risk waiting even a week to implement the ban, the administration then abandoned its appeal and waited three weeks to implement a new ban. Then, of course, there is the minor detail (yes, that is sarcasm) that not a single American has died from a terror attack perpetrated by individuals emigrating from any of the countries listed in the ban.
In fact, by excluding Iraq of all places – one of the two countries that are literally in the word “ISIS” – the Trump Administration has destroyed much of its good faith claim that the ban makes any sense in combating ISIS-backed terrorism. Moreover, now that they have jettisoned their reliance on the “Obama did it” rationale for the list of countries, the question becomes, what is the rationale for each country in this ban? If not Iraq, then why Sudan? Why not Saudi Arabia? These are the questions that courts will presumably be asking the government, and I do not think that they have a logical answer as to why those countries remain in the ban and yet Iraq somehow won the First Impression Rose. Ironically, in “tailoring” the ban by eliminating Iraq, they may have weakened the basis for the ban entirely.
Ultimately, however, the ban is still on strong constitutional footing because the Trump Administration exempted anyone with current ties to America. This, as I explained in my original article, has the effect of lowering the applicable level of constitutional scrutiny. That is the key here.
Non-resident, un-admitted aliens possess no constitutional rights themselves. Kleindienst v. Mandel, 408 U.S. 753 (1972). As I explained, any constitutional challenge would come down to the question of whether the ban rested upon “a facially legitimate and bona fide” reason. Id. If so, then the courts will not look beyond that basis and will instead defer to the government.
Ultimately, those with Equal Protection claims will seize on the “bona fide” language and assert that the travel ban is not bona fide and instead is intended to disfavor Muslim immigrants. In doing so, they would rely on Trump’s Muslim ban comments and the ever-shifting reasons given for this ban. That might be appealing to the Ninth Circuit, and it might even get potential Plaintiffs past a 12(b)(6) motion and into discovery. But it also might not win a preliminary injunction – which requires a “likelihood of success on the merits” – and it certainly will be very tough in the Supreme Court.
In conclusion, the new travel ban is much leaner and really requires any constitutional challenges to be fought on the government’s terms. As I said initially, while there might be nothing that could possibly save the travel ban, the new EO certainly goes a long way.