The Travel Ban: Unconstitutional?

The Trump administration's travel ban has been challenged in court on several occasions, with arguments made that it violates the Establishment Clause of the US Constitution, the Immigration and Nationality Act, and the Administrative Procedure Act. The ban has been described as cruel and contradictory, with little evidence to support the administration's claims that it will protect the US against crime and terrorism. The Supreme Court has upheld the ban, endorsing the presidential authority to impose such restrictions, but critics argue that this sets a dangerous precedent, giving the president a blank check to impose further bans.

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The ban violates the Establishment Clause of the US Constitution

The travel ban imposed by the Trump administration has been challenged in court by several states, including Hawaii, on the grounds that it violates the Establishment Clause of the US Constitution. The Establishment Clause prohibits the government from making any laws that favour one religion over another or discriminate against particular religions or religious groups.

While the Supreme Court upheld the travel ban, it left an opening for future challenges to the policy of barring foreign nationals from the country. The Supreme Court was not obligated to rule on whether the ban violated the Establishment Clause, but it chose to do so, likely due to public attention on the President's statements as evidence of underlying religious animus. During his campaign, Trump had called for a "total and complete shutdown of Muslims entering the United States." However, the Chief Justice found that, despite these statements, the ban was not constitutionally impermissible, citing the executive branch's authority over admissions and national security concerns.

The Supreme Court's ruling has been criticised for setting a precedent that gives the President broad authority over immigration matters. The Brennan Center for Justice argued that the Court raised the bar for a successful constitutional challenge by applying a legal standard that was exceedingly deferential to the government. Additionally, Justice Stephen Breyer called for further proceedings to address how the travel ban is being applied, as the exemptions and waivers may show an anti-religious bias and violate the Establishment Clause.

The travel ban has also been challenged in lower courts, with Judge Theodore D. Chuang of the US District Court of Maryland issuing a temporary restraining order blocking the ban on the basis that it violated the Establishment Clause. The Fourth Circuit upheld this ruling, continuing to block the travel ban because it violated the Establishment Clause. These rulings highlight the ongoing legal debate over the constitutionality of the travel ban and the role of the judiciary in reviewing executive actions related to immigration.

The ban is a nondelegation problem

The Trump administration's travel ban has faced significant opposition and legal challenges, including constitutional arguments against it. One of the key constitutional issues is the nondelegation problem. This argument centres around the idea that the travel ban gives the president excessive power to exclude migrants and non-citizens from entering the United States.

The nondelegation argument asserts that for the travel ban to be upheld, Section 1182(f) would need to grant the president almost unlimited authority to bar migrants and other non-citizens from entering the country. This would mean that the president could declare any potential migrant's entry as "detrimental to the interests of the United States" and justify a ban. The nondelegation issue is further complicated by the fact that the Constitution does not explicitly grant immigration powers to any specific branch of government. Founding Fathers like James Madison and Thomas Jefferson rejected the idea that the federal government had a general power to restrict immigration.

The travel ban's rationales, such as protecting against crime and terrorism, are considered weak at best. Migrants from the affected nations have lower crime rates than native-born Americans, and the ban's inclusion of certain countries seems inconsistent and arbitrary. The ban's impact on refugees and long-term migrants is also disproportionate, as they are entitled to permanent residency and are unlikely to overstay.

The nondelegation argument against the travel ban highlights the potential overreach of presidential authority in immigration matters. It underscores the importance of constitutional checks and balances, especially when it comes to the government's power to restrict immigration. The outcome of this legal challenge will have significant implications for both constitutional principles and the lives of thousands of migrants seeking refuge or a better life in the United States.

In conclusion, the nondelegation problem is a critical aspect of the constitutional argument against the travel ban. It questions the concentration of power in the executive branch and seeks to uphold the separation of powers and the freedoms enshrined in the Constitution.

The ban contradicts the Immigration and Nationality Act of 1965

The Immigration and Nationality Act of 1965, also known as the Hart-Celler Act, was a federal law passed by the 89th United States Congress and signed into law by President Lyndon B. Johnson. The Act abolished the National Origins Formula, which had been the basis of U.S. immigration policy since the 1920s, and ended an immigration-admissions policy based on race and ethnicity.

The National Origins Formula had been established in the 1920s to preserve American homogeneity by promoting immigration from Western and Northern Europe. This approach came under attack during the 1960s, at the height of the Civil Rights Movement, for being racially discriminatory. The Immigration and Nationality Act of 1965 created a seven-category preference system that prioritized family reunification, employment, and refugee status, marking a radical break from past immigration policies that restricted immigration from Asia and Africa and gave preference to Northern and Western Europeans.

Trump's travel ban against people from 12 mostly African and Middle Eastern countries directly contradicts the spirit and intent of the Immigration and Nationality Act of 1965. The ban targets countries with low rates of terrorism and lower crime rates than the United States, and includes countries with few overstays while omitting others with far higher numbers. The ban also affects immigrants already in the United States, causing fear and confusion and potentially upending their lives.

Furthermore, the inclusion of non-predominantly Muslim countries in the ban is seen as a red herring, as very few people will be affected from those countries. The ban applies to business and tourist visas for certain government officials and their immediate family members in Venezuela, for example, while only 109 visas were issued to North Korean nationals in 2016. The travel ban, therefore, appears to be a mechanism to reverse-engineer a Muslim ban, as text from the first Muslim ban was lifted verbatim from a 2016 speech by then-candidate Trump entitled "Understanding the Threat: Radical Islam and the Age of Terror."

In conclusion, Trump's travel ban contradicts the Immigration and Nationality Act of 1965 by reinstating a discriminatory immigration policy based on race and ethnicity and targeting countries that do not pose a significant threat to the United States. The ban not only affects immigrants seeking entry but also those already in the country, causing fear and confusion. The inclusion of non-predominantly Muslim countries and the lifting of text from the previous Muslim ban further indicate a discriminatory motive behind the travel ban.

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The ban is religiously discriminatory

The Trump administration's travel ban has been criticised as being religiously discriminatory. The ban targets 12 mostly African and Middle Eastern countries, including Libya, Yemen, Iran, Somalia, and Sudan. Critics argue that the ban disproportionately affects Muslim-majority countries and individuals, as five out of the seven nations included in the ban are Muslim-majority.

While the Trump administration justifies the ban as a necessary measure to prevent terrorism and control visa overstays, this reasoning has been described as ""flimsy" and "contradictory". The included countries have low rates of terrorism and lower crime rates than the US. Additionally, the ban excludes countries with higher rates of visa overstays. The administration's ""worldwide review"" to identify inadequacies in vetting practices and inform the targeted countries has been criticised as a mechanism to reverse-engineer a Muslim ban.

Legal challenges to the travel ban have been raised on constitutional and statutory grounds. The Fourth Circuit Court of Appeals ruled that the ban likely violates the First Amendment of the US Constitution, finding it "unconstitutionally tainted with animus toward Islam". Judge Chuang's order also noted a violation of the Establishment Clause, which prohibits religious discrimination, and the Immigration and Nationality Act of 1965, which prohibits discrimination based on nationality in the issuance of immigrant visas.

Despite these challenges, the Supreme Court upheld the travel ban, endorsing the presidential authority to implement such measures. However, the Court left the door open for future challenges, particularly regarding the potential religious discrimination inherent in the policy. The ruling did not address the Establishment Clause issue, but it applied a deferential standard of review, recognising the executive branch's authority in matters of national security.

The implications of the Supreme Court's decision extend beyond the travel ban itself. The affirmation of presidential authority in this context may embolden further restrictive immigration policies and impact ongoing debates about the DACA program and border security.

The ban is politically motivated

Trump's travel ban has been criticised as politically motivated, with some arguing that it is a thinly veiled attempt to fulfil his campaign promise of a "total and complete shutdown of Muslims entering the United States". The ban targets 12 mostly African and Middle Eastern countries, including Afghanistan, Iran, Libya, Somalia, and Yemen. While Trump justifies the ban as necessary to prevent terrorism and visa overstays, critics point out that the countries included have low terrorism rates and that visa overstays cannot justify banning long-term migrants and refugees.

The travel ban has been through several iterations, with the current version being dubbed "Travel Ban 3.0". Despite the changes, critics argue that the ban still serves as a mechanism to target Muslims, with the included countries being largely Muslim-majority. This is supported by the fact that the ban functionally overlaps with Trump's original "Muslim ban" policy, which was lifted from a 2016 campaign speech.

The inclusion of a few non-predominantly Muslim countries is seen as a red herring, as very few people are affected from those countries. Additionally, the ban has been criticised for its arbitrary nature, with some countries that have high rates of visa overstays being omitted, while others with low rates are included. This has led to accusations of political motivations in the selection of targeted countries.

The travel ban has faced numerous legal challenges, with some courts finding that it violates the Establishment Clause of the United States Constitution, which prohibits religious discrimination. Despite these challenges, the Supreme Court upheld the ban, endorsing the presidential authority to implement such restrictions. However, the ruling also left an opening for future challenges, indicating that the debate over the constitutionality of the travel ban is likely to continue.

The impact of the travel ban extends beyond legal debates, as it has caused fear and confusion among immigrants from the affected countries who are already in the United States. The ban has been described as upending the lives of those affected, highlighting the human cost of such policies.

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