//  9/25/17  //  Commentary

Yesterday, the administration’s entry ban expired. Reports have already emerged that the administration will be instituting a new entry ban, based on information it had acquired during its review of existing entry procedures. Some early reports suggest the administration will ban varying amounts of travel from several countries -- Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

The challenge to the previous entry ban (the one that is before the Supreme Court) is now moot, as several commentators expected it would be. The question for the Supreme Court now is what to do with the mooted case – decide it anyway (under one of the mootness exceptions), or decline to reach the merits. If the Court goes with the latter option, it would then have to decide whether to vacate the underlying judgments (since the case became moot before the Supreme Court weighed in), or leave them in place. On that question, check out Steve Vladeck’s amicus brief for scholars of federal jurisdiction, and Marty Lederman's post yesterday.

But now that the case has become moot, it’s worth reflecting on one thing we’ve learned over the course of the summer—the administration’s stated justifications for the entry ban and the suspension of the refugee program were paper thin and easily discredited.

When the President signed the first entry ban (and the first refugee suspension), this is what the signed order offered by way of a justification:

To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) …, I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries [subject to the order] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.

The subsection (a) is the section directing g the government to conduct its own review of existing entry procedures. (“The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.”).

The first order said the same thing about the suspension of the refugee program –that the suspension facilitated the government’s own review of existing procedures:

The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days.  During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. 

The second order managed to leave out the explicit religious preferences that were in the first order. It did, however, keep the anti-Muslim dog whistling and the not-too-subtle disparaging of Islam with references to “honor killings.” See Sec. 11(a)(iii) (directing the Secretary of Homeland Security and Attorney General to “make publicly available” “information regarding the number and types of acts of gender-based violence against women, including so-called ‘honor killings,’ in the United States by foreign nationals”). In addition to that not-too-subtle disparagement, the first order had declared, as the order’s policy that:

The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.  In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

It does not take a legal or literary genius to recognize that those words convey various ways that the President and the President’s enablers and supporters have disparaged Islam. That led Gerald Neuman to proclaim that the order was not “facially legitimate,” in addition to being short on “bona fide[s].” And a few others picked up on that suggestion a well.

But the second order has developed another facial legitimacy problem in the meantime. Like the first order, the second order couples both the entry ban and the suspension of the refugee program to the government’s need to complete a review of existing entry and refugee procedures.

Section 2(c) of the current order provides:

To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim …. that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States.  I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order.

(Emphasis added). Subsection (a) is the provision directing the government to review existing procedures.

And section 6 likewise still couples the suspension of the refugee program to the need to review existing procedures:

The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section.  During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.  

In other words, both the entry ban and the suspension of the refugee program were temporary measures necessary to allow the government to review existing procedures. In fact, that’s precisely how the government depicted the measures in briefing, and how it argued the measures were necessary:

Section 2(c) of which suspends the entry of certain foreign nationals from Iran, Sudan, Syria, Libya, Somalia, and Yemen for 90 days, while the new Administration reviews the Nation’s screening and vetting procedures to ensure that they adequately detect terrorists.

It was always absurd to think that the government could not simultaneously review existing procedures and apply them. As Sarah Huckabee Sanders has repeatedly reminded us, the administration is capable of walking and chewing gum at the same time.

At least in this particular context, the administration has been able to live up to its words, with the Supreme Court (and the courts of appeals and district courts’) prodding. Since June 26, the government has had to apply existing procedures (at least as to persons with “bona fide” connections to persons or entities in the United States) and review those procedures at the same time. It’s also been able to generate a purportedly new set of entry procedures based on what it learned in the process. That confirms what many of us have known all along—that the stated justification for the entry ban and the suspension of the refugee program were not the real justification for the orders.

That leaves the order’s bald assertion that the ban and suspension are necessary for national security (in the event the Court were to reach the merits, which I don’t think it will). There’s more than a few reasons to be skeptical of that justification, ranging from its context (the “determination” reached the same conclusion the President reached without consulting any officers who rely on intelligence other than Fox News) to various statements the President has made. And, as Marty has explained in detail, “Donald Trump’s say-so is not a presidential ‘national security judgment.’”


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