President Trump campaigned for office in part upon a promise that, if elected, he would institute a “Muslim ban” barring all Muslims from entry to the United States. Just a week into his new administration, the president issued an executive order temporarily barring foreigners from certain select, and largely Muslim, countries from entering the United States. Chaos ensued at airports around the world. A federal judge in Seattle issued a nation-wide temporary restraining order blocking implementation of the order. The government appealed this decision to the Ninth Circuit Court of Appeals which upheld the lower court’s ban on the travel ban. And there the matter stood for over a month while the Administration debated what to do next.
Finally, President Trump issued a new and “improved” travel ban attempting to clean up major flaws in the original order, most importantly, clarifying that it did not apply to green card holders and other permanent residents or existing visa holders. Not good enough. On Wednesday, a federal district judge in Hawaii granted a temporary restraining order blocking the revised order just one day before it was set to take effect. Thursday morning a federal judge in Maryland issued a similar order.
Both courts relied largely upon President Trump’s own words as a candidate promising to impose a “Muslim ban” on entry to this country as evidence that the travel ban was animated by hostility to a particular religion and therefore violated the United States Constitution. No matter how capable the lawyers at the Department of Justice are, they cannot erase these words from the public record and this evidence of discrimination will follow any proposed travel ban to its ultimate demise. Should the Trump administration decide to appeal the latest orders, it is highly likely that the liberal Ninth Circuit Court of Appeals will once again ban the ban.
Aside from the president’s own words, the administration’s slow pace and self-imposed delays in rolling out the revised order are largely to blame for this mess as they seriously undercut the administration’s claim of the urgency of imposing the ban. Keep in mind that the order, both in its original form, and its revised version, is designed only to create a temporary “pause” of ninety days in travel from the selected countries. During this ninety day pause, the government plans to devise another scheme for “extreme vetting” of individuals from the selected affected countries.
One key question remains: why is the administration expending valuable time and taxpayer resources to implement a temporary travel ban so that it can then ostensibly use the time (dwindling as each day of litigation goes by) to come up with its “extreme vetting program?” After all, the administration wasted six weeks defending the first version and is likely to spend at least that much time warding off challenges to travel ban 2.0, including an appeal of the recent Hawaii order.
There goes almost the entire ninety-day “pause” the government says it needs to devise a new “extreme” vetting program for these countries. Why is the administration wasting that time defending a temporary pause instead of actually coming up with the new vetting program it claims is necessary? That program, when finally introduced, is sure to be challenged in the courts as well. Why not get on with the main show and avoid all this drama with preliminary bouts?
Indeed, the administration stands a much better chance of getting a more vigorous vetting program through the courts than the present or even a further revised temporary travel ban. This is because the travel ban prohibits entry to the United States by all persons from a particular country and the selected countries are predominantly Muslim. This opens any such ban to the charge that it unlawfully discriminates on the basis of religion or nationality. A more stringent vetting program, on the other hand, would be neutral regarding religion or nationality and could be based on objectively verifiable criteria. For example, it might bar any individual from any country of any religion who was a member of or associated with or provided material support to a terrorist organization.
The Trump Administration and its Department of Justice need to throw in the towel on their quixotic quest to ban temporarily all individuals from specific Muslim countries. It’s just not going to happen. Instead, those charged with keeping our country safe should focus on measures that will actually make our country safer.
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Steve Frank is an attorney and writer who, until he recently retired, served for over 30 years in the United States Department of Justice. He briefed and argued over 100 cases in the federal courts of appeals.