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Analysis

The "NO BAN" Act: A Needed Check on Presidential Decision-Making

The NO BAN Act ensures that presidential orders to bar people from entering the United States are the product of proof rather than prejudice.

April 17, 2019

The following originally appeared in Just Security.

President Trump’s ban on travel from a set of predominantly Muslim countries has now been in place for over two years. Born from religious prejudice and ordered by presidential declaration, it continues to tear apart thousands of American families, muzzle creative expression, and damage U.S. businesses.

Policies like this ‘Muslim Ban’ might be expected in authoritarian regimes where leaders rule unrestrained and can freely stoke religious conflict for political gain. But in a constitutional democracy, they represent a failure of our system of checks and balances. Last week, Sen. Chris Coons (D-DE) and Rep. Judy Chu (D-CA) introduced a bill, the NO BAN Act, that would restore some of these checks and balances by repealing the Muslim Ban and making changes to the law that the president used to order it. Over 100 Members of Congress have co-sponsored this proposal.

The basic idea of the National Origin-Based Anti-discrimination for Non-immigrants (NO BAN) Act is to make sure that presidential orders to bar or restrict people from entering the United States are the product of proof rather than prejudice.

As now interpreted by the Supreme Court, Section 212(f) of the Immigration & Nationality Act (INA) broadly authorizes the president to bar people from entering the U.S. when he finds that doing so would be in the national interest. The NO BAN Act amends the INA to require such restrictions be supported by credible facts, are of a defined duration, and are necessary to address specific acts that threaten the safety of the American public, human rights, democracy, or international stability. Further, under the bill, a ban may only be used if less severe policy options would not work, and if it is crafted to affect no more people than is essential to accomplish its purpose.

The NO BAN Act also expands the INA provision that currently bars discrimination on the basis of race, sex, nationality, place of birth, and place of residence in the issuance of permanent visas. It adds religion to the list of protected categories, and applies the nondiscrimination provision to most immigration benefits, including temporary visas.

Most important, the NO BAN Act doesn’t give the president the final word on whether these requirements are met: Congress, judges, and the public are given the tools and information to double-check and push back.

Bans Are Unnecessary and Ineffective  

No doubt the reform effort will have its critics, especially among those who tend to take an expansive view of presidential power. Such critics may suggest that calling something a public safety threat should be enough to justify pretty much any immigration-related restriction. But they are on weak footing here. While more limited bans have in the past been put in place to communicate compliance with international agreements or forward discrete foreign policy goals, broader bans are rarely –  if ever – necessary or advisable to keep the American public safe from dangers overseas. And certainly not for years on end.

The first reason is legal: no independent authority is needed to keep from the United States – on a case-by-case basis – people who might pose a risk to the country because, for example, they have engaged in terrorist or criminal activity, carry a serious communicable disease, or their entry would be contrary to U.S. foreign policy goals. Congress has already authorized those bars on entry in the INA. The NO BAN Act wouldn’t change that.

The second is practical: people coming into the United States already go through one of the most thorough vetting systems in the world, during which they are subjected to a range of checks and interviews to determine if they are eligible to enter. When it comes to counterterrorism, this system – though it’s far from fair and free of discrimination – has an incredibly low rate of failure. Further, as more than 50 former national security officials who served both Democratic and Republican presidents wrote in court filings opposing the Muslim Ban, “overbroad suspension[s] of travel…seriously damage” U.S. interests, including diplomatic efforts, intelligence gathering missions, as well as humanitarian and economic imperatives.

That statement remains true outside the counterterrorism context too. Consider a classic example of a crisis: a major disease outbreak somewhere in the world. Responding to such an emergency – when Ebola broke out in West Africa – the Obama administration didn’t impose a ban, which many experts advised would be ineffective and make Ebola tougher to contain. Instead, President Obama settled on a solution that redirected travelers from the region, already screened before boarding, to designated U.S. airports where additional screening could occur. This response was even praised for helping end the crisis by President Trump’s former Health & Human Services Secretary Tom Price.

The NO BAN Act Protects against Arbitrary and Discriminatory Action

Rather than inhibiting effective crisis management, the NO BAN Act’s requirements would make it harder for a president to put in place arbitrary travel restrictions.

The Muslim Ban, for example, is indefensible as a national security policy. It doesn’t rely on the “credible facts” called for by the proposed reform. Officials within President Trump’s own Departments of Homeland Security and State conducted analysis that ran against the ban’s initial premise, which was that people from certain countries were more likely than others to commit terror attacks. Instead of taking into account the expert consensus, the Trump administration suppressed these findings and other data that did not support its anti-Muslim narrative. The administration even admitted, in response to a challenge filed by the Brennan Center and our allies, that its public report tarring immigrants as terrorists – a report released pursuant to the second in a series of orders instituting ban – was flawed and could appear biased.

In requiring that the president specify and justify the length of a proposed ban, the NO BAN Act makes it harder for the executive branch to overrule decisions Congress has already – and properly – made. Consider that versions of the Muslim Ban have been in place for over two years. This means it can no longer be justified as an emergency measure based on the president’s unique capacity to respond to fast-moving challenges.

Instead, in enacting what appears to be a permanent ban, President Trump has alone made a value judgment, deciding that people from certain predominantly Muslim countries are not to be granted U.S. visas. This is a judgment that contravenes the purpose of the INA, which was a landmark civil-rights era law – presented to the people, and passed by Congress – that eradicated a race-based immigration system favoring white Europeans. Indeed, while signing it on Liberty Island, President Johnson celebrated the end of the “harsh injustice of the national origins quota system.”

Action without evidence or process has been par for the course in this administration. As of mid-January, it had won only about six percent of legal challenges to its policy shifts under the Administrative Procedure Act, which forbids executive branch agencies from making arbitrary rule changes. These cases have included initial defeats in lawsuits targeting attempts to add a citizenship question to the 2020 census, end protections for undocumented people who came to the United States as children, and roll back environmental regulations. (In other administrations, the government has prevailed about seventy percent of the time.) Especially in this setting, there’s good reason to strengthen checks on presidential decision-making.

The Muslim Ban is a glaring example of how the broad authorities Congress gives presidents can be abused. Congress should pass the NO BAN Act now to ensure prejudice isn’t a reason for closing America’s doors.