John discussed the Trump administration’s revised travel order in a post below. He says it looks bullet proof, and so it does. However, I can’t help but suspect that if the same judges who reviewed the original order rule on its successor, the outcome might well be the same, with new concerns providing the basis for an anti-administration ruling.
This time around, though, I’m confident the administration is prepared to take the matter to the Supreme Court. What the four liberal Justices will make of the new order is anyone’s guess. However, the fact that Trump scaled it back in response to the concerns expressed by courts may help the administration’s case in even their eyes.
To me, the most interesting change in the travel order is one that wasn’t prompted by any court decision. I’m referring to the decision to eliminate Iraq from the list of countries to whose citizens the 90-day ban on the issuance of new visas applies.
The case for applying the ban to Iraq always seemed a little weaker than the case for the other countries on the original list — Iran, Libya, Yemen, Sudan, Somalia, and Syria. The Iraqi government is more stable than its counterparts in some of these places and more willing to cooperate with the U.S. than its counterparts in others.
The official explanation for eliminating Iraq from the list, as presented by Rex Tillerson, is two fold: (1) Iraq’s central role in the fight against ISIS and (2) Iraq’s agreement to increase its cooperation in vetting Iraqis applying for travel into the U.S.
It also seems to be the case that Iraq pushed back. Parliament voted to impose a similar ban on Americans, and Iran’s proxies pushed for the expulsion of U.S. troops aiding in the fight against ISIS. It may be that the Trump administration felt the temporary ban wasn’t worth alienating the Iraqi government and playing into Iran’s hands, especially once Iraq agreed to help with vetting.
Whatever the true motive for eliminating Iraq from the list, its initial inclusion may have led to improved vetting of Iraqis coming to the U.S. And that’s what the 90-day ban is really about. It’s supposed to give our government time to determine whether vetting of would-be entrants from unstable and/or hostile states with lots of terrorists can be improved to the point where we have sufficient confidence that we’re not letting in people who present a heightened risk of terrorist activity.
In this way, I think, the order marginally improves homeland security. It imposes some hardship, but almost entirely on non-citizens who have no right to enter the U.S.
Such an order should not be the subject of second-guessing by judges.