Mind the Ban

With the constant chaos swirling around the Trump administration, each individual day feels like it lasts a week.do-not-enter  And most weeks feel like they like they last for a month.  Under those conditions, it’s really easy to lose track of events that happened just a day or two earlier, never mind events that happened a week or two ago.

So I just wanted to take a minute to remind you about some news that has gotten pushed to the back burner: tonight, when the clock strikes midnight, Trump’s revised travel ban will go into effect.

Several states (and in a couple cases, individuals) have already filed lawsuits to try to stop the ban before it goes into effect.  So a bunch of hearings on those suits are set for today.  Politico has a good rundown on all of those hearings here.

It’s possible that one or more of the judges in these cases will issue a temporary injunction or restraining order putting a halt on implementation of the ban, but it’s very hard to predict the likelihood of that happening.  The new travel ban is much more narrowly tailored than the original ban and therefore has a better chance of surviving judicial review.  (Keep in mind that the original ban was clearly not carefully thought out at all, so the Trump administration had in no way tailored that ban to its stated purposes.  So saying that this version is more narrowly tailored than the original is not necessarily saying a whole lot.)

Unlike the previous ban, the new ban will not apply to green card holders or people who already hold valid visas.  A big problem with the original ban was green card holders and visa holder who happened to be out of the country when the ban went into effect were not allowed to re-enter the U.S..  This ban also won’t apply to someone who was previously granted asylum or refugee status but just happens to be out of the country when the ban goes into effect. All of the aforementioned people will be allowed entry into the United States under the revised version of the ban.

The new ban also drops Iraq from the ban entirely, and it no longer treats Syrian refugees differently from other refugees.  Remember, in the previous ban, Syrian refugees were banned indefinitely, while other refugees were banned for 120 days.  The new ban also no longer makes exceptions to allow in refugees who are “religious minorities” (i.e. Christians).  Under the revised ban, all refugees will be treated the same – banned for 120 days, until new screening measures will supposedly be put in place.

These changes will likely make it harder to challenge in court, especially because it will be harder to find anyone who can claim to be injured by the law.  It is unclear under the law whether a person who has never been admitted to the U.S. is granted the constitutional protections of the U.S.  So arguments would have be made by a U.S. family member or a University or a state on behalf of someone in Syria (for example) who is trying to come here as a refugee, which can be a more difficult case to make.*

However there are some legal experts who think the prior history of the first travel ban, plus Trump’s past statements about a “Muslim ban” can still be used against him when weighing this new ban.  And they believe that might be enough to get even this ban ultimately thrown out.  So it’s really impossible to predict how today’s hearings will turn out.  

And remember, even if the ban is allowed to proceed to implementation after today’s hearings, that’s not the end of the story.  There will still be plenty more lawsuits coming that will challenge the substance of the law once it’s gone into effect.

*****

*One federal court in Wisconsin has already ruled against enforcement of the ban with respect to the wife and child of a refugee who had already been granted asylum in the United States.  The temporary restraining order issued in this case applies only to this specific family.

 

 

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