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Prior Presidents’ “Travel Bans” Are Different From President Trump’s Ban

Thursday, November 16, 2017 14:25

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President Trump’s travel ban Proclamation that bans immigration and travel from seven countries (and limits it from an eighth) is based on authority in immigration law that other presidents have used. But all but one of these bans were quite different from President Trump’s. They banned at most a few thousand—almost always specifically named—individuals based on their personal conduct, not their nationality. In the one exception, not all nationals were banned, and the requirements to end the ban were very clear. Neither of which can be said for the Trump ban.

Different in Scale

No president has attempted to ban as many foreigners with a single stroke of his pen as President Trump did this September. If fully implemented, his ban would impact the ability of 183.6 million people to apply for a visa to travel to the United States—that’s the sum total of the population in the seven banned countries, but there are millions of their nationals who live outside their borders. This compares to the 10.2 million Cubans that President Reagan partially banned in 1986. All of the other 42 bans combined barred only roughly 30,000 (see explanation at the end).

Figure 1
Number of Banned Persons (in Millions) by Order

Sources: Author’s calculation based on the Office of Foreign Assets Control, World Bank, Congressional Research Service (listing the bans)

Here’s another important point: A majority of all of those banned under the 42 orders likely would be inadmissible under existing law anyway. About a third, for example, are terrorism suspects sanctioned under a Bush administration executive order and barred from entry by President Obama. But current law already bans those people from entering. For this reason, and because very few of these people had any intention to travel to the United States anyway, hardly any visa applicants have been denied due to a presidential proclamation. From 1991 to 2016, consular officers initially determined that a presidential proclamation could apply to 5,762 visa applicants. Of them, less than half—2,626—were ultimately denied a visa. As Figure 3 highlights, several years have seen no denials at all.

Figure 2
Number of Visa Applicants Denied Due to a Presidential Proclamation, FY 1991 to 2016

Sources: U.S. Department of State, “Table XX Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for Refusal Under the Immigration and Nationality Act),” FY 1991 to FY 2016

The Supreme Court allowed the second iteration of President Trump’s travel ban to go into partial effect from June to September, allowing him to ban those without any family or connections to U.S. businesses. Unfortunately, the State Department probably will not release data on visa denials until sometime next year. But it has revealed that it was approving roughly half as many visa applications in 2017 as it did in 2016 for the banned countries. We know that 693,827 people from banned countries received a visa from 2002 to 2016, including 73,503 in 2016. If even 4 percent of this total were denied a visa due to the latest travel ban, then more visa applicants will be denied a visa under this travel ban than all bans since 1991.

Different in Methodology

Unlike President Trump’s travel ban, 98 percent of prior president’s proclamations banned individuals based on their personal conduct, and almost always—93 percent of the time—they required that the targeted person be specifically identified and named by the Department of State. Only 2 percent of the time—one case—was nationality alone the requirement for the ban, and in no case was every visa applicant with that nationality subject to the ban. Under the Trump ban, all visa applicants from Syria and North Korea are subject to the ban based on their nationality alone, and most applicants are banned from Iran, Chad, Somalia, and Yemen.

Figure 3
Pre-Trump Executive Actions to Bar Visas by Methodology for Identifying Targets, 1980-2016

Sources: Author’s calculation based on the World Bank, Congressional Research Service (listing the bans)

The personal conduct included selling military equipment in Libya, purchasing certain materials from North Korea, attacking United Nations mission, or being a member of the North Korean regime. To avoid these types of bans, the targeted persons could simply stop engaging this type of activity. (Table 1 at the end of this post lists each proclamation or executive order as well as who the ban targeted.)

Different in Application

Roughly half of all pre-Trump bans did attempt to coerce governments indirectly by targeting their officials due to actions that the government was taking. Yet in virtually all of these cases, the government’s offense is clearly stated. In 1996, for example, President Clinton faulted “the current regime in Burma” for continuing “to detain significant numbers of duly elected members of parliament, National League for Democracy activists, and other persons.” In 1988, President Reagan imposed a ban on certain Nicaraguan officials for the “unjustified expulsion from Nicaragua of the United States Ambassador and seven other United States diplomats.”

The only other case in which individuals were banned based solely on the conduct of their government—and not due to their personal participation in that conduct as government officials—was President Reagan’s ban on Cuban immigration in 1986. But this ban exempted the largest category of Cuban immigrants—immediate family members of U.S. citizens. It also had a very clearly stated objective to get the Cuban government to accept the repatriation of 2,746 Cubans, and it achieved its objective the following year in 1987.

By contrast, President Trump’s travel ban—while seeming to lay out a series of very specific criteria—does not actually ban any country based on this criteria. As I’ve detailed before, the president fails to apply the criteria to countries off his travel ban list and applies stricter criteria to make sure his chosen countries stay on the list. This inconsistency means that no country actually knows why it is banned. Moreover, since the order doesn’t apply its stated criteria, countries that currently fail them, whether they are on the list or off it, have little incentive to change their behavior. This is a very different situation than the one in 1986. Cuba knew exactly why it was on the list and what it needed to do to get off of it.

President Trump’s travel ban will impact more people than any other, and it operates in a way different from all others. It is truly unprecedented.

Table 1: Presidential Proclamations to Exclude Certain Classes of Aliens

	Order	Year	Targeted Area/Govt	Acts of Alien	Identified Aliens	Nationality Alone	All Nationals	Number*
	P 9645	2017	7 Countries	NO	NO	YES	YES	184 million
1	EO 13726	2016	Libya	YES	YES	NO	NO	10
2	EO 13722	2016	North Korea	YES	YES	NO	NO	61
3	EO 13712	2015	Burundi	YES	YES	NO	NO	29
4	EO 13694	2015	Unspecified	YES	YES	NO	NO	39
5	EO 13692	2015	Venezuela	YES	YES	NO	NO	7
6	EO 13687	2015	North Korea	YES	YES	NO	NO	97
7	EO 13685	2014	Ukraine	YES	YES	NO	NO	19
8	EO 13667	2014	C. African R.	YES	YES	NO	NO	89
9	EO 13664	2014	S. Sudan	YES	YES	NO	NO	40
10	EO 13662	2014	Russia & Crimea	YES	YES	NO	NO	278
11	EO 13661	2014	Russia & Crimea	YES	YES	NO	NO	60
12	EO 13660	2014	Ukraine	YES	YES	NO	NO	218
13	EO 13645	2013	Iran	YES	YES	NO	NO	32
14	EO 13628	2012	Iran	YES	YES	NO	NO	117
15	EO 13619	2012	Burma	YES	YES	NO	NO	482
16	EO 13608	2012	Iran & Syria	YES	YES	NO	NO	9
17	EO 13606	2012	Iran & Syria	YES	YES	NO	NO	21
18	P 8697	2011	Unspecified	YES	YES	NO	NO	?
19	P 8693	2011	Unspecified & Various	YES	YES	NO	NO	22,383
20	P 8342	2009	~17 Nations	YES	YES	NO	NO	?
21	P 8158	2007	Lebanon & Iran	YES	YES	NO	NO	15
22	P 8015	2006	Belarus	YES	YES	NO	NO	195
23	P 7750	2004	Unspecified	YES	YES	NO	NO	?
24	P 7524	2002	Zimbabwe	YES	YES	NO	NO	87
25	P 7452	2001	Balkans	YES	YES	NO	NO	374
26	P 7359	2000	Sierre Leone	YES	YES	NO	NO	?
27	P 7249	1999	Serbia	YES	YES	NO	NO	2,184
28	P 7062	1998	Sierre Leone	YES	YES	NO	NO	?
29	P 7060	1997	Angola	YES	YES	NO	NO	?
30	P 6958	1996	Sudan	YES	YES	NO	NO	283
31	P 6925	1996	Burma	YES	YES	NO	NO	482
32	P 6749	1994	Bosnia	YES	YES	NO	NO	334
33	P 6730	1994	Liberia	YES	YES	NO	NO	556
34	P 6685	1994	Haiti	YES	YES	NO	NO	1194
35	P 6636	1993	Nigeria	YES	YES	NO	NO	?
36	P 6574	1993	Zaire	YES	YES	NO	NO	?
37	P 6569	1993	Haiti	YES	YES	NO	NO	?
38	EO 12807	1992	High Seas	YES	NO	NO	NO	?
39	P 5887	1988	Nicaragua	YES	YES	NO	NO	?
40	P 5829	1988	Panama	YES	YES	NO	NO	?
41	P 5517	1986	Cuba	NO	NO	YES	NO	10 million
42	P 5377	1985	Cuba	YES	YES	NO	NO	665
43	P 4865	1981	High Seas	YES	NO	NO	NO	?
	Pre-2017 Share of Yes			98%	93%	2%	0%

Sources: Author’s calculation based on the Office of Foreign Assets Control, World Bank, Congressional Research Service (listing the bans)
*Other than the Trump ban and the Cuba ban, the number is based on the number of designations under the Office of Foreign Assets Control. This number also includes “entities” such as organizations, agencies, and businesses, so the total number is probably somewhat larger for this reason as well as the fact that the bans often included the immediate family of the targeted person. Italicized numbers indicate that the number is based on the current sanctions impacting that country.

Table 2: Presidential Proclamations to Exclude Certain Classes of Aliens

	Date	Target and Purpose
1	2016, Apr. 21 – Obama Executive Order 13726, 81 Fed. Reg. 23559	Aliens who “contributed to the situation in Libya” in enumerated ways (e.g., threatening the peace of Libya by supplying arms, impeding the political transition to a Governor of National Accord, threatening Libyan state financial institutions or Libyan National Oil Company, attacking Libyan state facilities, attacking civilians, or illegally selling Libyan oil
2	2016, Mar. 18 – Obama Executive Order 13722, 81 Fed. Reg. 14943	Aliens who engaged in certain transactions involving North Korea (e.g., selling or purchasing metal, graphite, coal, or software directly or indirectly to or from North Korea, or to persons acting for or on behalf of the North Korean government or the Workers’ Party of Korea)
3	2015, Nov. 25 – Obama Executive Order 13712, 80 Fed. Reg. 73633	Aliens who “contributed to the situation in Burundi” in enumerated ways (e.g., threatening the peace of Burundi by undermining the democratic processes of Burundi, targeting women, children, or civilians through acts of violence, assaulting freedom of expression, recruiting children to the armed forces, obstructing humanitarian assistance, or attacking United Nations missions. Suspension is justified due to “violence against civilians… and significant political repression.”)
4	2015, Apr. 2 – Obama Executive Order 13694, 80 Fed. Reg. 18077	Aliens who engaged in “significant malicious cyber-enabled activities” (e.g., harming or significantly compromising the provision of services by a computer or computer network that supports an entity in a critical infrastructure sector)
5	2015, Mar. 11 – Obama Executive Order 13692, 80 Fed. Reg. 12747	Aliens who “contributed to the situation in Venezuela” in enumerated ways (e.g., undermining Democratic processes in Venezuela by conducting acts of violence against persons involved in antigovernment protests in Venezuela in or since February 2014, limiting freedom of expression or assembly, engaging in corruption by senior officials within the Government of Venezuela, or being officials of the Government of Venezuela)
6	2015, Jan. 6 – Obama Executive Order 13687, 80 Fed. Reg. 819	Aliens with enumerated connections to North Korea (e.g., officials of the North Korean government or the Workers’ Party of Korea) due to North Korea’s “destructive, coercive cyber-related actions during November and December 2014”
7	2014, Dec. 24 – Obama Executive Order 13685, 79 Fed. Reg. 77357	Aliens who engaged in certain transactions involving the Crimea region of Ukraine (e.g., materially assisting, sponsoring, or providing financial, material, or technological support for, or goods or services to or in support of, persons whose property or interests are blocked pursuant to the order, such as leaders of entities operating in the Crimea region of Ukraine, investors in the Crimea region of the Ukraine, and importers of goods from Crimea, or exporters of goods to Crimea) due to “the Russian occupation of the Crimea region of Ukraine”
8	2014, May 15 – Obama Executive Order 13667, 79 Fed. Reg. 28387	Aliens who contributed to the conflict in the Central African Republic in enumerated ways (e.g., threatening the peace of C.A.R. by obstructing transitional agreements in the political transition, targeting women, children, or civilians in acts of violence, recruiting children to armed groups, obstructing the delivery of humanitarian assistance, or attacking U.N. missions)
9	2014, Apr. 7 – Obama Executive Order 13664, 79 Fed. Reg. 19283	Aliens who engaged in certain conduct as to South Sudan (e.g., actions or policies that “have the purpose or effect of expanding or extending the conflict,” obstructing reconciliation or peace talks or processes, targeting civilians through acts of violence, recruiting child soldiers, or attacking against U.N. missions)
10	2014, Mar. 24 – Obama Executive Order 13662, 79 Fed. Reg. 16169	Aliens who contributed to the situation in Ukraine in enumerated ways (e.g., operating in the financial services, energy, metals and mining, engineering, or defense and related materiel sectors of the Russian Federation economy due to Russia’s “purported annexation of Crimea and its use of force in Ukraine”)
11	2014, Mar. 19 – Obama Executive Order 13661, 79 Fed. Reg. 15535	Aliens determined to have contributed to the situation in Ukraine in enumerated ways (e.g., officials of the government of the Russian Federation, or persons who operate in the arms or related materiel sector due to the “deployment of Russian Federation military forces in the Crimea region of Ukraine”)
12	2014, Mar. 10 – Obama Executive Order 13660, 79 Fed. Reg. 13493	Aliens determined to have contributed to the situation in Ukraine in enumerated ways (e.g., engagement in or responsibility for misappropriation of state assets of Ukraine or of economically significant entities in that country)
13	2013, June 5 – Obama Executive Order 13645, 78 Fed. Reg. 33945	Aliens who have engaged in certain conduct related to Iran (e.g., materially assisting, sponsoring, or providing support for, or goods or services to or in support of, any Iranian person included on the list of Specially Designated Nationals and Blocked Persons)
14	2012, Oct. 12 – Obama Executive Order 13628, 77 Fed. Reg. 62139	Aliens who engaged in certain actions involving Iran (e.g., knowingly transferring or facilitating the transfer of goods or technologies to Iran, to entities organized under Iranian law or subject to Iranian jurisdiction, or to Iranian nationals, that are likely to be used by the Iranian government to commit serious human rights abuses against the Iranian people)
15	2012, July 13 – Obama Executive Order 13619, 77 Fed. Reg. 41243	Aliens who are determined to threaten the peace, security, or stability of Burma in enumerated ways (e.g., participation in the commission of human rights abuses, or importing or exporting arms or related materiel to or from North Korea)
16	2012, May 3 – Obama Executive Order 13608, 77 Fed. Reg. 26409	Aliens who engaged in certain conduct as to Iran and Syria (e.g., facilitating deceptive transactions for or on behalf of any person subject to U.S. sanctions concerning Iran and Syria)
17	2012, Apr. 24 – Obama Executive Order 13606, 77 Fed. Reg. 24571	Aliens determined to have engaged in enumerated conduct involving “grave human rights abuses by the governments of Iran and Syria via information technology” (e.g., operating or directing the operation of communications technology that facilitates computer or network disruption, monitoring, or tracking that could assist or enable serious human rights abuses by or on behalf of these governments)
18	2011, Aug. 9 – Obama Proclamation 8697, 76 Fed. Reg. 49277	Aliens who participate in serious human rights and humanitarian law violations and other abuses (e.g., planning, ordering, assisting, aiding and abetting, committing, or otherwise participating in “widespread or systemic violence against any civilian population” based, in whole or in part, on race, color, descent, sex, disability, language, religion, ethnicity, birth, political opinion, national origin, membership in a particular social group, membership in an indigenous group, or sexual orientation or gender identity)
19	2011, July 27 – Obama Proclamation 8693, 76 Fed. Reg. 44751	Aliens subject to U.N. Security Council travel bans and International Emergency Economic Powers Act sanctions based on a list of 29 Executive Orders and 12 U.N. resolutions.
20	2009, Jan. 16 – Bush Proclamation 8342, 74 Fed. Reg. 4093	Heads of ministries or agencies and officials occupying positions within the two bureaucratic levels below those top positions of foreign governments ranked more than once as Tier 3 countries in the Department of States’ annual Trafficking in Persons Report.
21	2007, July 3 – Bush Proclamation 8158, 72 Fed. Reg. 36587	Persons that threaten Lebanon’s sovereignty and democracy (e.g., current or former Lebanese government officials and private persons who “contribute to the breakdown in the rule of law in Lebanon, including through the sponsorship of terrorism, politically motivated violence or intimidation, or the reassertion of Syrian control in Lebanon”) and Syrian officials who are directing Syria’s military presence in Lebanon or directing Syria’s support for Hamas, Hizballah, Palestinian Islamic Jihad, the Popular Front for the Liberation of Palestine, the Popular Front for the Liberation of Palestine-General Command, and any other foreign terrorist organizations.
22	2006, May 16 – Bush Proclamation 8015, 71 Fed. Reg. 28541	Persons that threaten the transition to democracy in Belarus (e.g., Members of the government of Alyaksandr Lukashenka and other persons involved in policies or actions that “undermine or injure democratic institutions or impede the transition to democracy in Belarus” due to “the fraud perpetrated by the Belarus government during the recent Belarusian presidential campaign and election, the detention of peaceful protesters in Belarus, [and] the persistent acts of corruption by Belarusian government officials in the performance of public functions”
23	2004, Jan. 14 – Bush Proclamation 7750, 69 Fed. Reg. 2287	Persons who have engaged in or benefitted from corruption in enumerated ways (e.g., current or former public officials whose solicitation or acceptance of articles of monetary value or other benefits has or had “serious adverse effects on the national interests of the United States”)
24	2002, Feb. 26 – Bush Proclamation 7524, 67 Fed. Reg. 8857	Persons that threaten Zimbabwe’s democratic institutions and transition to a multi-party democracy (e.g., Senior members of the government of Robert Mugabe, persons who through their business dealings with Zimbabwe government officials derive significant financial benefit from policies that undermine or injure Zimbabwe’s democratic institutions due to the “crisis in Zimbabwe and the continued failure of President Robert Mugabe, Zimbabwean government officials, and others to support the rule of law”)
25	2001, June 29 – Bush Proclamation 7452, 66 Fed. Reg. 34775	Persons who threaten international stabilization efforts in the Western Balkans or commit wartime atrocities in that region preventing “full implementation of the Dayton Peace Accords in Bosnia and United Nations Security Council Resolution 1244 in Kosovo”
26	2000, Oct. 13 – Clinton Proclamation 7359, 65 Fed. Reg. 60831	Aliens who plan, engage in, or benefit from activities that support the Revolutionary United Front or otherwise impede the peace process in Sierra Leone
27	1999, Nov. 17 – Clinton Proclamation 7249, 64 Fed. Reg. 62561	Aliens repressing the civilian population in Kosovo or policies that obstruct democracy in the Federal Republic of Yugoslavia (FRY) or otherwise lend support to the government of the FRY and the Republic of Serbia due to actions “against elements of the civilian population of Kosovo” and “to obstruct democracy and to suppress an independent media and freedom of the press in the FRY, Serbia, Montenegro, and Kosovo”
28	1998, Jan. 16 – Clinton Proclamation 7062, 63 Fed. Reg. 2871	Members of the military junta in Sierra Leone and their family for “to permit the return to power of the democratically elected government of that country”
29	1997, Dec. 16 – Clinton Proclamation 7060, 62 Fed. Reg. 65987	Senior officials of the National Union for the Total Independence of Angola (UNITA) and adult members of their immediate families for failure to “comply with its obligations under the Accordos de Paz”
30	1996, Nov. 26 – Clinton Proclamation 6958, 61 Fed. Reg. 60007	Members of the government of Sudan, officials of that country, and members of the Sudanese armed forces for failing to “comply with United Nations Security Council Resolution 1044 of January 31, 1996” (failing to “extradite to Ethiopia for prosecution the three suspects sheltering in the Sudan and wanted in connection with the assassination attempt” on the Egyptian President and “assisting, supporting and facilitating terrorist activities and from giving shelter and sanctuaries to terrorist elements”)
31	1996, Oct. 7 – Clinton Proclamation 6925, 61 Fed. Reg. 52233	Persons who “formulate, implement, or benefit from policies that impede Burma’s transition to democracy” and their immediate family members because “the current regime in Burma’s continues to detain significant numbers of duly elected members of parliament, National League for Democracy activists, and other persons attempting to promote democratic change in Burma” and “has failed to enter into serious dialogue with the democratic opposition and representatives of the country’s ethnic minorities, has failed to move toward achieving national reconciliation, and has failed to meet internationally recognized standards of human rights.”
32	1994, Oct. 27 – Clinton Proclamation 6749, 59 Fed. Reg. 54117	Aliens described in U.N. Security Council Resolution 942 (e.g., officers of the Bosnian Serb military and paramilitary forces and those acting on their behalf, or persons found to have provided financial, material, logistical, military, or other tangible support to Bosnian Serb forces in violation of relevant U.S. Security Council resolutions) due to “the Bosnian Serb forces’ refusal to accept the proposed territorial settlement of the conflict in the Republic of Bosnia and Herzegovina, and of United Nations Security Council Resolution 942 of September 23, 1994”
33	1994, Oct. 5 – Clinton Proclamation 6730, 59 Fed. Reg. 50683	Aliens who formulate, implement, or benefit from policies that impede Liberia’s transition to democracy and their immediate family due to “political and humanitarian crisis in Liberia” during the Liberian civil war.
34	1994, May 10 – Clinton Proclamation 6685, 59 Fed. Reg. 24337	Aliens described in U.N. Security Council Resolution 917 (e.g., officers of the Haitian military, including the police, and their immediate families; major participants in the 1991 Haitian coup d’etat) due to “the expulsion from Haiti of President Aristide and the constitutional government.”
35	1993, Dec. 14 – Clinton Proclamation 6636, 58 Fed. Reg. 65525	Aliens who formulate, implement, or benefit from policies that impede Nigeria’s transition to democracy and their immediate family due to the “the political crisis in Nigeria” (not stated in the Proclamation, but this followed the military’s decision to annul the presidential election results)
36	1993, June 23 – Clinton Proclamation 6574, 58 Fed. Reg. 34209	Persons who formulate or benefit from policies that impede Zaire’s transition to democracy and their immediate family due to “the political and economic crisis in Zaire” (not stated in the Proclamation but this followed the dictator Mobutu’s refusal to step down from power)
37	1993, June 7 – Clinton Proclamation 6569, 58 Fed. Reg. 31897	Persons who formulate, implement, or benefit from policies that impede the progress of negotiations to restore a constitutional government to Haiti and their immediate family due to “the expulsion from Haiti of President Aristide and the constitutional government”
38	1992, June 1 – Bush Executive Order 12807, 57 Fed. Reg. 23133	Making provisions to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any covered vessel carrying such aliens due to “a serious problem of persons attempting to come to the United States by sea without necessary documentation and otherwise illegally”
39	1988, Oct. 26 – Reagan Proclamation 5887, 53 Fed. Reg. 43184	“Officers and employees of the Government of Nicaragua” and the Sandinista National Liberation Front due to the refusal to “allow the entry of United States diplomats to ensure the continued functioning of the U.S. embassy” and cease “suppression of free expression and press and support of subversive activities throughout Central America”
40	1988, June 14 – Reagan Proclamation 5829, 53 Fed. Reg. 22289	Panamanian nationals who formulate or implement the policies Manuel Antonio Noriega and Manuel Solis Palma, and their immediate families for “preventing the legitimate government of President Eric Arturo Delvalle from restoring order and democracy to that country.”
41	1986, Aug. 26 – Reagan Proclamation 5517, 51 Fed. Reg. 30470	Cuban nationals as immigrants with certain enumerated exceptions (e.g., Cuban nationals applying for admission as immediate relatives under INA § 201(b)) due to the failure to execute of the December 14, 1984 immigration agreement between the United States and Cuba (repatriation of 2,746 Cubans)
42	1985, Oct. 10 – Reagan Proclamation 5377, 50 Fed. Reg. 41329	“Officers or employees of the Government of Cuba or the Communist Party of Cuba” due to the failure to execute of the December 14, 1984 immigration agreement between the United States and Cuba (repatriation of 2,746 Cubans)
43	1981, Oct. 1 – Reagan Proclamation 4865, 46 Fed. Reg. 48107	Undocumented aliens from the high seas, and directing the interdiction of certain vessels carrying such aliens because the “ongoing migration of persons to the United States in violation of our laws is a serious national problem detrimental to the interests of the United States.”

Source: https://www.cato.org/blog/prior-presidents-travel-bans-are-different-president-trumps-ban

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