You may have heard that Trump signed a new version of the travel ban executive order, which takes effect March 16 and cancels the previous version of the ban. Key differences include:
- Iraq is removed from the list of banned countries.
- Syria is no longer singled out for indefinite/permanent exclusion. It now gets the same temporary ban as the other countries on the list.
- The part about giving preference to religious minorities (which Trump said was designed to prioritize Christians) is gone.
- The ban doesn’t apply to green card holders.
- The text includes a lot of extra (silly) justification for why the ban is necessary.
- EDIT: As Brianna pointed out in the comments section, the order also cuts the annual refugee cap from 110,000 (under the Obama administration) to 50,000. Why do all these rules, supposedly aimed at keeping out terrorists, actually keep out victims of terrorists?
The idea of categorically banning immigrants from certain countries, as a security measure, has never made any sense, because the statistical correlation between a person’s security risk and nationality is absurdly low. So the basic idea of the travel ban was dumb before, and it hasn’t gotten any less dumb.
But a lot of critics are already calling the new version unconstitutional, and that’s quite a different thing. The ACLU tweeted:
Newsflash: #MuslimBan2 is still religious discrimination, still unconstitutional. So we’re fighting it.
This seems like a tougher case to make. It certainly isn’t a Muslim ban in a literal sense, as it affects a small minority of Muslims, and there’s no longer any language that gives special treatment to any religious groups within those countries. It might be the first step toward a Muslim ban, or the closest they think they can legally get to a Muslim ban, but that’s different.
The old version was clearly (to me) unconstitutional for a number of reasons, but this new version seems to have changed those parts. The only way I can see this being unconstitutional now is that it has the intent to discriminate.
That seems a little shaky.
I certainly agree that religious discrimination seems like the intent. Trump explicitly said so, after all. And from what I understand, proving a (religious) discriminatory intent is indeed sufficient to prove discrimination in a First Amendment legal context. But the idea of asking a judge to determine the motivation in the President’s brain seems like an overreach. Surely it’s the law (or order) itself that matters, not the feelings of the people who created it — right?
Again, I think Travel Ban 2.0 is idiotic, and harmful, and should be removed. I’m just not sold (yet) on this “unconstitutional” thing.
Readers, any thoughts?