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New Travel Ban, Same Poisonous Policy

Trump’s revised Muslim ban should fail for exactly the reason the first one did.

March 7, 2017

Cross-posted at U.S. News and World Report

President Donald Trump’s second try at an executive order halting immigration from certain majority-Muslim countries takes a markedly different tone from the first. It spends several pages discussing the perceived need for the policy, and it emphasizes the exceptions to the travel ban, rather than downplaying them as the prior version did. The clear intent is to convince the courts that the ban is the result of careful deliberation rather than religious animus.

But the tactical tweaks in this latest edition cannot rescue the order’s constitutionality. Underneath the softened rhetoric and other adjustments lies the same poisonous policy: an effort to restrict Muslims’ entry into the U.S.

The outlines of that effort are now familiar to both the American public and the courts. Subject to discretionary, case-by-case exceptions, the revised order bars the issuance of visas to people from six majority-Muslim countries – Syria, Iran, Libya, Sudan, Somalia and Yemen – for 90 days, and suspends the refugee admissions process for 120 days. The stated purpose of the freeze is to give federal agencies time to shore up the vetting process for people seeking entry to this country. Once that process is revamped, the ban will be extended for countries that cannot provide whatever new assurances the U.S. government seeks.

Multiple courts have already found these measures to be constitutionally suspect. In the Ninth Circuit (encompassing the western states), a trial judge and a federal appeals panel concluded that the first travel ban appeared to violate the Constitution’s due process clause, impinging on important rights without giving notice or a hearing to those affected. A court in Virginia found that it likely violated the First Amendment’s Establishment Clause because it had the intent and effect of disfavoring one religion.

Read the full article at U.S. News and World Report.