President Trump is expected to issue a new version of his travel ban today, revised to address some of the concerns raised in litigation challenging the original executive order. The New York Times reports that the new order will not cover legal permanent residents of the United States, travelers who have already obtained visas, or visitors from Iraq, which was one of seven Muslim-majority countries whose citizens were banned from entering the U.S. for 90 days under the original order. According to the Times, the new order also eliminates the distinction between refugees from Syria, who were banned indefinitely under the original order, and refugees from other countries, who were banned for 120 days. These changes make the order more legally defensible, less disruptive, and less patently unfair.
According to the Supreme Court, green-card holders have a right to due process when the government tries to stop them from returning to their homes after traveling abroad. It is less clear whether other foreign nationals authorized to live in the country, such as students at American universities and employees of American companies, have viable due process claims, or whether U.S. citizens who have relationships with them might. But in all of these cases, the original order gratuitously upended the plans of people who had already been vetted and had every reason to believe they would be allowed to enter or re-enter the United States. In hundreds of cases, the travel ban stopped people with valid visas who were already en route to the United States, causing needless anxiety and uncertainty. Critics of the order, including many Republicans, emphasized the unfairness of pulling the rug out from under people who were already legally living in the U.S. or had received permission to do so.
Removing Iraq from the list of banned countries addresses another aspect of the order that was commonly highlighted by critics, especially Republicans: People whose lives were endangered by the assistance they gave American forces in Iraq suddenly could no longer count on special immigration visas giving them safe haven in the United States. The decision to let Iraqis continue to enter the U.S., supposedly justified by assurances from the Iraqi government about vetting procedures, conveniently eliminates this objection.
Although critics will continue to question the wisdom and morality of suspending the refugee program (and of dramatically reducing the cap on refugees once the program resumes), Trump clearly has the legal authority to do so. Applying the suspension equally to all refugees weakens the argument that he is discriminating against Muslims in that part of the order. The travel ban still primarily affects Muslims, since the populations of the six countries it covers (Iran, Libya, Somalia, Sudan, Syria, and Yemen) are overwhelmingly Muslim. But it is not literally a “Muslim ban,” since it allows the vast majority of the world’s Muslims to continue visiting the United States. Hence any charge of anti-Muslim discrimination, whether it is framed as an equal protection, Establishment Clause, or religious freedom claim, hinges on statements Trump or his advisers made that arguably illuminate the motives behind the order.
The U.S. Court of Appeals for the 9th Circuit, which upheld a temporary restraining order against the travel ban, firmly rejected the Trump administration’s argument that courts should look only at the order itself and avoid speculating about the president’s motivation for issuing it. But the evidence on that point is ambiguous. During his campaign Trump repeatedly talked about banning all Muslims, but that is not what he ended up doing. “When he first announced it,” Trump adviser Rudy Giuliani said on Fox News in January, “he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together. Show me the right way to do it legally.’…What we did was we focused on, instead of religion, danger: the areas of the world that create danger for us. Which is a factual basis, not a religious basis.” You can read that explanation to mean that Trump’s order is a Muslim ban in disguise, or that it is not a Muslim ban at all.
Trump has offered a nondiscriminatory rationale for picking the seven (now six) countries he did: They had all been identified as havens for terrorists or state sponsors of terrorism. If that is the standard, of course, the list is incomplete. In any case, it is arguably the wrong standard, since people from the countries covered by the order have accounted for only a small share of domestic terrorist activity (and zero deadly attacks) in the United States since 1975. Still, it is a standard that has nothing to do with religion per se, and it is probably enough to satisfy any court that gives the president the benefit of the doubt when he claims to be protecting national security, as courts tend to do.
Whether Trump’s order actually will do anything to prevent terrorist attacks in the United States is another matter. The suspect logic of the travel ban, the haphazard manner in which it was written, and the haste with which it was imposed all suggest he was mainly interested in seeming to do something about a threat he has consistently exaggerated. But that motivation, unlike hostility toward Muslims, does not make the order illegal.