By Noah Feldman
Can the addition of North Korea and Venezuela save President Donald Trump’s third travel ban from the constitutional flaws of his first two? By rights, the answer should be no — and the new ban would be unlikely to survive careful judicial scrutiny of its shaky logic.
But in the real world, the U.S. Supreme Court may take the opportunity to de-escalate the ongoing conflict between the Trump administration and the judiciary. If that is so, a majority of the justices could simply defer to Trump’s assertion that the countries on the list were chosen because they don’t provide information to facilitate screening of visitors. Such deference would provide an easy route to upholding the ban, and might establish a kind of detente between Trump and the courts.
The idea would be that the courts have taught Trump a lesson about the rule of law, and can now afford to let him have a ban that might well have been upheld if Trump had promulgated it to begin with rather than so blatantly targeting Muslims.
The new ban, explicated in a “proclamation” issued by the White House on Sunday, articulates for the first time a superficially plausible justification for blocking visitors from the targeted countries.
It’s not a coincidence that this ban comes in the form of a proclamation rather than an executive order like its two predecessors. The genre of the proclamation allows for factual findings and reasoning to explain the decision. In contrast, Trump’s immigration orders were peremptory and notably lacking in even minimally credible explanation.
The thrust of the proclamation is to explain that the president requested and received an inquiry into the “information-sharing practices, policies, and capabilities of foreign governments” with respect to visitors. In theory, a foreign government’s cooperation in assessing and sharing information about potential visitors should enable the U.S. government to “assess whether foreign nationals attempting to enter the United States pose a security or safety threat.”
The proclamation breaks down the relevant analysis into three categories: “identity management information” — essentially, whether passports are legitimate; “national security and public safety information” — whether the foreign government helps identify potential terrorists; and “national security and public safety risk assessment” — whether the country poses a security risk to the U.S.
This all sounds superficially plausible. Iran, Libya, Syria and Somalia — four majority Muslim countries that have been included in the previous travel bans — could all be reasonably said to fall short on one or more of these criteria. Iraq, another majority Muslim country that was included in earlier iterations of the ban, has its problems on these fronts too. (The current ban doesn’t fully apply to Iraqi nationals, who will instead get special vetting.) Chad, a majority Muslim country that did not appear in the earlier bans but now does, also broadly fits this list.
North Korea, included in the new ban, doesn’t cooperate with the U.S. at all. Venezuela is probably the worst fit, but not all Venezuelans are banned, only government officials and their families.
The problem with the new ban is that it has clearly been gerrymandered to save face by incorporating most of the original majority Muslim countries that were presumptively chosen for reasons of bias according to several courts. The substitution of Chad for Sudan seems like a particularly banal effort to suggest rationality without changing the total number of Muslim countries.
There is no real danger of visitors from North Korea, because almost no North Koreans are ever allowed to visit the U.S. The Venezuelan ban really makes little sense in terms of national security. It’s more of a symbolic retaliatory strike against the government of Nicolas Maduro.
Without North Korea and Venezuela, of course, the ban is still limited to majority Muslim countries. And it just is not credible that no non-Muslim countries pose security risks by failing to cooperate adequately on identity management and information sharing.
A court that bothered to look closely at Trump’s rationale would be hard-pressed to conclude that this is anything more than a rewarmed Muslim ban, dressed with a North Korean-Venezuelan sauce to try and mask its original flavor.
Yet it’s entirely possible that the Supreme Court, at least, might choose to defer to the Trump administration’s national security assessment. That is what the courts normally do when the president invokes power granted to him by Congress, in this instance the power to exclude citizens of some countries in the interest of national security.
It would be doctrinally easy for the justices to defer, relying on Justice Robert Jackson’s now canonical view that when Congress has delegated power to the president, his constitutional authority is at its zenith.
Politically, deference might also seem appealing not only to the conservative justices but also to swing voter Justice Anthony Kennedy. The judiciary has by now signaled to Trump that he can’t just declare his will by executive order and expect the courts to enforce it. The naked anti-Muslim bias of the original executive orders is now gone, at least at the overt level.
In its place is the homage that vice pays to virtue — namely the hypocrisy of the existing order’s claim to be about information sharing and identity management. From the standpoint of the judiciary, that homage is very important. It stands for the basic recognition of judicial supremacy when it comes to constitutional principles like nondiscrimination.
If Trump had issued something like the text of travel ban 3.0 when he first took office, the courts would probably have let it stand. Whether they allow this version depends on how closely they’re willing to look at the proclamation’s logic. Nondiscrimination would be better served by striking it down. Detente between the executive and judicial branch may call for letting it stand.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.