Travel Ban Blocked, But Simple Change Might Have Saved It – Expert

Press Release ( - WASHINGTON - Mar 15, 2017 - President Donald Trump’s new revised immigration order has been blocked from going into effect, but it might have been saved by a simple change, says a public interest law professor who believes it’s constitutional, but repeatedly highlighted this one serious weakness.

        Adding just one – much less several – non-Muslim countries to the list would have undermined the argument that it was an anti-Muslim ban, says professor John Banzhaf of GWU Law School.

        “Even if I believe I have a strong case, I would certainly seek to strengthen it – bulletproof it from foreseeable legal attacks – if a judge expressed concern, and if I could fix it easily,” says Banzhaf.

        Here several different judges had at least suggested that the first ban represented religious discrimination because only Muslim-majority countries were singled out, so prudence and a concern for upholding his power to restrict immigration strongly suggested adding one or more additional countries.

        “Adding even one non-Muslim country – for example North Korea – would significantly help to undercut this legal argument,” says Banzhaf, noting that there is precedent for exactly such a move.

        For example, at one point the Transportation Security Administration [TSA] singled out for automatic secondary screening all persons with passports from twelve countries.  These included not only Muslim-majority countries, but also two non-Muslim countries: Cuba and North Korea.

        Similarly, the National Security Entry-Exit Registration System [NSEERS], which was initiated as a direct response to the 9/11 attacks by Muslims, required registration and reporting by male visitors from 25 countries, including one – again, North Korea – which was not Muslim-majority.

        A judge in Virginia had issued an injunction preventing the enforcement of the order after expressing strong concern that it discriminated on the basis of religion because all of the countries named in it were Muslim-majority countries.  Other judges, although not ruling on this particular basis, nevertheless expressed some concern that the original ban might be illegally targeting Muslims based upon their religion.

        It certainly would not have been hard to justify adding a few more countries to the list of those singled out as posing an enhanced risk of terrorism.  One of the arguments for including these countries, and not many others in the region, was that their weak and ineffective governments mean that identity documents are unreliable, and there are often no reliable records of criminal activity, so vetting is very difficult.

        But exactly the same argument can be made about several war-torn African countries such as South Sudan and the Central African Republic, says Banzhaf.  Adding those two countries, in addition to North Korea, would have undercut arguments that only Muslim-majority countries are being targeted – and targeted for religious reasons – and this change is also unlikely to trigger wide-spread public disapproval.

        Why did they risk even additional temporary delays from preliminary injunctions in regulating immigration Trump considered dangerous, and protracted litigation which in the end could lead to a decision holding any such order unconstitutional, when this problem could be so easily corrected, asks Banzhaf.

        If courts do rule that Trump does not have the power to ban immigrants from suspicious countries, he may want to copy what Germany is doing – requiring immigrants who may pose a security threat –  “Gef√§hrder” – to wear GPS ankle monitors to permit authorities to inexpensively keep them under surveillance 24/7, and to be instantly alerted to any suspicious movements, he says.

        Banzhaf notes that 8 USC 1182(f) gives the president the authority to “impose on the entry of aliens any restrictions he may deem to be appropriate.”

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418  @profbanzhaf

Source : Public Interest Law Professor John Banzhaf

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