DC Deciphered

Trump’s Muslim ban/travel ban has been mostly missing from the news recently, pushed aside by the incredible Russia revelations at the beginning of last week, and that doozy of a press conference at the end the week.  But while the travel ban may be momentarily forgotten, it is most certainly not gone.

The temporary restraining order (TRO) is still in effect for Trump’s original travel ban, but he’s promised to issue a revised travel ban sometime this week.  So I wanted to talk about something that didn’t get much discussion the first time around:  where did that list of the seven banned countries really come from?  Trump and his people defended his travel ban by saying that President Obama was the one who first assembled the list of countries they used in the ban, or as Reince Preibus put it “the seven most dangerous countries in the world.”

But is this true?  The short answer is not a very satisfying one: sort of.  Obama did sign a travel-related law that uses a list of those seven countries, but – the first thing to know is – the law Obama signed uses the list in a very different way than Trump’s does.  This fact actually got a decent amount of media coverage when Trump’s people first made the comparisons, so if you’re already familiar with what Obama’s law did, you can skip ahead to the next section. (And props to the lyin’ corrupt media for being on top of this!)

Obama’s Law Revised the Visa Waiver Program

The law Trump & Co refer to is a 2015 law that revised the Visa Waiver program* in response to the terror attacks that had just occurred in Paris and San Bernardino.  It didn’t ban anyone from entering the United States but simply required visas from certain people who were previously permitted to enter without them.  It applied to people who had recently traveled to, or had dual citizenship with, certain countries of concern (currently the seven listed countries).

For example, a dual citizen from France and Iran could formerly enter without a visa due to their French passport, since France was a Visa Waiver country.  But under the new 2015 law, they would not be able to, due to their Iranian passport, since Iran was on the list of countries of concern.  They would still be able to enter the U.S., but only after going through the regular visa application process just like anyone else from Iran would have to.

The law made exceptions for those who’d traveled to a listed country for diplomatic, military, or humanitarian reasons, etc and also allowed for case by case waivers.  So again, it was not a ban, but what you might call, I don’t know, what’s that word Trump likes so much?  Oh yeah, vetting.

So though he’s using it in quite a different way, Trump’s executive order did take its list of seven countries from this 2015 law.  In fact, Trump’s executive order doesn’t actually name the banned countries, it simply refers to the provision of the 2015 law where the countries of concern are designated.  But now here’s the second part of the question, the part that I was really curious about because it didn’t get much media coverage or explanation: how did Obama come up with that list? Why did he focus on those countries??

So Why Did Obama Choose Those 7 Countries?

Well, he didn’t exactly.  The law – and the list – originated in the Republican led Congress.  Specifically it began with a proposal by one Republican Congresswoman, Rep. Candice Miller (no longer in Congress).  She proposed a bill in the House to end the visa waivers for dual nationals of Syria and Iraq.  In the Senate, Democrat Dianne Feinstein & Republican Jeff Flake proposed a less restrictive bill that focused only on whether people had recently traveled to the countries of concern and did not take into account their nationality. But ultimately the nationality provision ended up in the bill passed by the Republican led Senate, against objections from many Democrats.  (The bill was also  opposed by the ACLU and the conservative Heritage Foundation).

As for Obama, there are several different stories of how this bill was passed, and Obama is more supportive in some versions than in others.  Some versions have it that he supported the bill only to try to quell the desire of the Republican Congress for more draconian measures, like ending the refugee program and barring Muslim immigrants altogether.  Other versions note that the provision was attached to a “must-pass” spending bill, something members of Congress do to twist the arm of colleagues or the President into supporting something they might not otherwise support. But some versions indicate that Obama supported the measure without being pushed.

In any case, when the bill was signed into law, the list had only four countries on it:  Syria & Iraq, due to concerns that instability in the two countries had drawn “thousands of foreign fighters” who might then travel to the U.S. to launch a terror attack, along with Sudan & Iran, because the State Department considers them “state sponsors of terror.”  Two months after the law was passed, the Department of Homeland Security added Libya, Somalia and Yemen to the list based on criteria Congress specified in the law.

And that is where the list of seven countries came from.  So Trump’s people are not wrong to say that the list came from a law passed by the Obama administration.  But they are wrong to say that Obama came up with the list or that it was a list of the most dangerous countries in the world.  And it is wrong to imply that the list was used for a purpose that is at all similar to the way Trump is using it now.

But Trump’s Ban is on Hold, So Why Do We Care??

Trump will almost certainly use this same list again in his revised immigration order, which he’s expected to issue sometime this week. (Though it wouldn’t entirely surprise me if he throws a couple non Muslim-majority countries on there just so he can say “see, how can it be a Muslim ban when Australia’s on the list?”).  Most likely, the new order will make it clear that green card holders – lawful permanent residents – are not affected by the order. This was a big source of confusion when the original order was being implemented, as green card holders who’d been out of the country at the time the order was issued were detained at U.S. airports or even deported during the first few days the order was in effect, in a plain violation of their rights.

That aspect of the executive order was one of the elements the 9^th circuit pointed to in upholding the TRO.  The new order should, at minimum, also be clear about exempting visa holders who are already legally in the United States, as this was another issue the court had with the original executive order.  But according to the Wall Street Journal the new order might still ban current visa holders from leaving the country and returning.

If that last item is true, the new travel ban would likely still have trouble passing legal scrutiny, but these cases are hard to predict since Presidents are given very wide latitude when it comes to immigration and national security (though not the unquestioned authority that Trump aide Stephen Miller claimed on last weekend’s Sunday shows).  However, Cornell law professor Michael Dorf explains at his Dorf on Law blog that even if Trump did fix the visa provision, that still might not do the trick.

He feels that any executive order that has a “disparate impact on” (disproportionately harms) Muslims might fail legal review, because of the history of Trump’s comments about a “Muslim ban,” which judges may take into account when reviewing the order.  (Personal note: Dorf was my Civil Procedure professor in law school years ago, before his Cornell days. But he’s most well known as an expert in Constitutional law).

Dorf suggests an order that focuses only on vetting (no bans) would likely pass legal muster.  And of course, Trump would have to rescind the original executive order, which he has not yet done.  But my favorite part of Professor Dorf’s analysis is item (5), where he comes up with an alternative proposal – a very Trumpian solution to the entire problem.  A summary wouldn’t do it justice, so please go read it in his own words here.

Oh, and happy President’s Day!!

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*The Visa Waiver program is a program by which the U.S. government allows citizens from 38 countries to travel to the United States for up to 90 days for tourism or business without a visa