New US travel ban expected to better withstand legal challenges
President Trump at the White House. His administration says several countries barred by the latest travel ban have unacceptably high temporary-visa overstay rates.
President Trump's second-term travel ban is expected to be harder to fight in court than previous iterations, after the Trump administration heeded lessons from a first-term court battle over the policy's legality.
Trump's initial travel ban launched one of the most defining fights of his first term. It banned travel from seven Muslim-majority countries, sparking turmoil at airports across the U.S., a torrent of lawsuits and three trips to the Supreme Court.
This time around, the travel ban signed Wednesday night affects 12 countries, largely in the Middle East and Africa. It has so far been met with consternation from immigration advocates, but no high-profile litigation was filed by early Thursday evening. Trump's first version of the travel ban drew challenges during the first 24 hours.
The American Civil Liberties Union, which led lawsuits against the policy under Trump's first administration, described the new travel ban as 'an attempt to further eviscerate lawful immigration pathways under the false guise of national security." But the organization, which is challenging numerous other Trump immigration policies, didn't sue Thursday.
The new proclamation is still likely to invite challenges, but legal experts said the trials and tribulations from the first term—which led to an eventual Supreme Court green light in 2018—made this ban less susceptible to scrutiny.
'The Trump administration learned its lessons," said Elora Mukherjee, a professor at Columbia University Law School who worked on the initial challenge to Trump's January 2017 ban.
The first two versions of the travel ban floundered in the courts over claims the administration was motivated by racial and religious bias in choosing countries to include. Trump made several comments calling for a ban on Muslim travelers before the initial executive order. The Supreme Court in 2018 found the ban was justifiable on independent national-security grounds.
In its Wednesday proclamation, the administration said several of the countries have unacceptably high temporary-visa overstay rates, necessitating a ban on more of their nationals entering the U.S. Others, it said, couldn't be relied upon to issue valid passports to verify a person's identity.
Providing the rationale for inclusion is a crucial update between this ban and the earlier incarnations, retired Cornell University law professor Stephen Yale-Loehr said.
'They're basically following the Supreme Court's decision in 2018 that as long as the president can show some reasons why a country was put on the travel ban, that would probably be legitimate under the very loose bona fide, legitimate reason test," he said. 'All presidents have wide discretion when it comes to immigration and national security."
The new ban applies only to people outside the U.S., though anyone in the country on an active visa who leaves the country stands to face difficulty returning while it is in effect. The ban also allows for some narrow exceptions, including for athletes and necessary staff planning to travel to the U.S. for the World Cup or Olympics.
The administration also carved out an exception for a small number of Afghans who qualify for a special immigrant visa, a specific designation for Afghans who worked alongside the U.S. military during its two-decade presence in that country. But most Afghans who were attempting to move to the U.S. as refugees or through certain legal pathways to join family could end up out of luck, advocates say, even those who were affiliated with other Western organizations.
The ban signed Wednesday is set to go into effect Monday. The first travel ban had a chaotic impact within hours, as activists and lawyers rushed to represent travelers caught off guard at airports.
University of Chicago law professor Aziz Huq said the rationale for including countries might still open the administration to challenges, but the Supreme Court's 2018 order suggests the justices will have a high bar for blocking it. That ruling affirmed the wide discretion immigration laws give to the president, and the court's recent rulings in other immigration cases underscored the justices' 'unwillingness to look under the hood of the assertions," he said.
'So it may well be the case that all of these countries do have adequate screening procedures, whatever adequate means here, but the chance the court will rule on that question of fact seems, to me, pretty low," Huq said.
In 2020, Trump expanded the ban that was blessed by the Supreme Court to include six additional countries mostly in Africa, including three on the current list. That move largely went unchallenged given global travel came to a halt soon after because of the Covid-19 pandemic.
Write to Mariah Timms at mariah.timms@wsj.com and Michelle Hackman at michelle.hackman@wsj.com
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