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Analysis

Trump’s Expanded Travel Ban: New Countries, Same Bigotry

The extension of the banned countries list is more of the same: excluding certain people from the United States based on prejudice. Congress needs to pass the No Ban Act to push back.

February 11, 2020

Pres­id­ent Trump has broadened what star­ted as a “Muslim ban” to block immig­ra­tion from six more coun­tries. The Janu­ary 31 exec­ut­ive order added Nigeria, Myan­mar, Erit­rea, Kyrgyz­stan, Sudan, and Tanzania to his personal blocked list.

More than half a billion people — and a quarter of Africa’s popu­la­tion — are now barred from seek­ing perman­ent resid­ency in the United States because of the pres­id­ent’s preju­dice, whether against Muslims or people from what he has referred to as “shithole coun­tries.”

These bans select­ively shut off immig­ra­tion from coun­tries Trump does­n’t like, and in the process prevent Amer­ic­ans from bring­ing their spouses and chil­dren to come live with them in the United States. They’re in direct conflict with the main purposes of Amer­ican immig­ra­tion law, which Congress passed the exist­ing frame­work for in 1965.

To reas­sert its author­ity, Congress needs to pass the No Ban Act, which would repeal the restric­tions and make it harder for the pres­id­ent to take similar biased actions in the future.

The truth behind the ban

No amount of regu­lat­ory subter­fuge can disguise the ban’s clear purpose. As the Bren­nan Center has argued in our lawsuit chal­len­ging the travel ban, the pres­id­ent has a well-docu­mented history of spew­ing hatred against Muslims, without which the ban would not have exis­ted in the first place.

That a number of coun­tries added recently aren’t predom­in­antly Muslim does­n’t change the fact that bias is the basis for the policy. Indeed, one of the driv­ing forces behind the ban is senior Trump adviser Stephen Miller, an appar­ent white suprem­acist whose leaked emails suggest that he sees demo­graphic changes brought upon by nonwhite immig­ra­tion as an attack on Amer­ica.

The policy isn’t tailored to achieve its stated goals, also bely­ing its true object­ive. The reason now given for the ban is essen­tially that the United States cannot prop­erly identify and screen people from coun­tries that do not take certain actions, like issu­ing elec­tronic pass­ports, shar­ing inform­a­tion about crim­in­als and suspec­ted terror­ists, or regu­larly report­ing lost or stolen travel docu­ments.

If such issues actu­ally gave rise to a genu­ine and press­ing national secur­ity concern, the ban does­n’t target many would-be threats. You’d expect well over a hundred coun­tries to be on the list, since many don’t appear to meet its baseline stand­ards.

And the policy only targets poten­tial immig­rants, not those trav­el­ing to the United States for tempor­ary visits, even though both categor­ies of people would be trav­el­ing on the same defi­cient pass­ports and be compared against the same incom­plete crim­inal and terror­ism data­bases, present­ing the same screen­ing chal­lenges. The admin­is­tra­tion says this distinc­tion is because it’s harder to deport someone if they’ve come in as an immig­rant and are later found to pose a threat — and so the costs of a vetting fail­ure are higher — but it’s also true that the front-end screen­ing for perman­ent visas is much more rigor­ous.

The ban also captures far more people than is neces­sary on its own terms. As former national secur­ity offi­cials of both parties poin­ted out in court filings oppos­ing the last ban, exist­ing law already demands that people who can’t prove who they are don’t get visas. Moreover, as the Cato Insti­tute’s research has shown, screen­ing fail­ures have been extremely rare — 1 in 379 million people that got permis­sion to enter the coun­try between 2002 and 2016 were deadly terror­ists.

These actions emerge in the context of an admin­is­tra­tion that’s made every effort to stop people from legally becom­ing Amer­ic­ans, from means-test­ing perman­ent resid­ency applic­a­tions to erect­ing proced­ural and evid­en­tiary hurdles that make it harder to get a visa. Trump even explored how to get rid of birth­right citizen­ship, which became guar­an­teed by the 14th Amend­ment after the Civil War. In this light espe­cially, a blanket ban on more than half a billion people from places the pres­id­ent regu­larly dispar­ages seems better explained as a meas­ure to keep out new Amer­ic­ans, not one to improve national secur­ity.

The pres­id­ent is over­reach­ing

A system in which the pres­id­ent can indef­in­itely ban immig­rants from wherever he disfa­vors isn’t consist­ent with the separ­a­tion of powers. The Consti­tu­tion clearly gives Congress the power to make the rules that determ­ine who can come to Amer­ica and become a citizen, and legis­lat­ors did exactly that by passing the Immig­ra­tion and Nation­al­ity Act (INA) of 1965, the law that still largely governs U.S. immig­ra­tion policy.

As he signed the bill beneath the Statue of Liberty, Pres­id­ent Lyndon John­son emphas­ized how it would end “the harsh injustice of … national origins quota[s],” which favored white Europeans, and instead prior­it­ize the reuni­fic­a­tion of famil­ies. He added that it was un-Amer­ican that “famil­ies were kept apart because a husband or a wife or a child had been born in the wrong place.”

Indeed, prom­in­ent Trump admin­is­tra­tion offi­cials in charge of immig­ra­tion policy have said that the 1965 law was a mistake and that they would return to what was before it. It should­n’t surprise anyone, then, that Trump’s immig­ra­tion bans reflect those pref­er­ences: they expli­citly favor certain nation­al­it­ies over others and keep separ­ate famil­ies that would other­wise be united.

The immig­ra­tion bans directly contra­dict what Congress has prescribed. And while it’s true that the drafters of the 1965 law may not have fore­seen its demo­graphic impacts, these are ques­tions squarely within Congress’ mandate to address.

Call­ing some­thing a “national secur­ity” matter isn’t a license to discrim­in­ate, nor is it an excuse to jettison exist­ing laws on the books. The No Ban Act would reverse Trump’s orders and amend the INA provi­sion he has leaned on for the Muslim ban and its expan­sion, making it harder for any pres­id­ent to enact preju­diced policies in the future. Among other things, the bill would strengthen the INA’s anti-discrim­in­a­tion language. It would also require that decisions to ban people from the United States be suppor­ted by evid­ence, of a defined dura­tion, and closely tailored to the purpose they are inten­ded to achieve.

The admin­is­tra­tion’s claims of national secur­ity do not exist in a vacuum. They exist in a world where Trump said that people from Nigeria would “never go back to their huts” after coming to the United States. Combine this with the pres­id­ent’s absence of author­ity or a rational basis for how coun­tries are added to the ban list and, and the real­ity is undeni­able. Trump’s travel ban is illegal, and it is racist.