Amid all the political and judicial furor over the Trump administration’s famous travel ban, it was sometimes difficult to remember that this system of restrictions on visa applicants and refugees was always a provisional, temporary measure, intended to give way after a review period to a permanent set of new vetting procedures and allotments. The time for this second phase of the fight over this small but significant corner of immigration policy has now arrived. The temporary visa policy expires on September 24, while the original refugee travel ban expires next month.
According to The Wall Street Journal, a new executive order will replace the travel ban on six countries with a variety of provisions affecting travel from eight or nine. The order is based on responses from various countries to demands for information from the Trump administration.
These include requirements that nations inform the U.S. about people it knows or believes to be terrorists or criminals; that countries issue or have active plans to issue electronic passports including biometrics, and that countries regularly report lost and stolen passports to Interpol, an international policing agency.
Those standards are consistent with those that the Obama administration sought in its effort to better screen potential visitors. The difference is the Obama administration generally tried to persuade nations to cooperate with incentives such as visa-free travel to the U.S., whereas the Trump administration is using threats, such as a ban on travel to the U.S.
It is unclear whether this change of strategy is designed to bring these countries around, or is more a matter of looking tough for domestic political reasons. It is also unclear how many countries will be hit with the kind of total visa ban the temporary order contemplated.
Initial indications are that the even stricter ban on refugees in the original order will be left in place.
That and the rest of the original order was supposed to be reviewed by the U.S. Supreme Court in its upcoming term, with oral arguments scheduled for October 10. This new order could make those hearings moot, or could force a later reconsideration. Any way you slice it, the federal courts will have their say over the constitutional and statutory issues surrounding these unilateral executive restrictions. And the administration believes (as the Journal puts it) “the new rubric will also be easier to defend in court because it is more targeted and based on more sophisticated analysis of the threats posed.”
Politically, the new order (which the president hasn’t approved yet, though he could do so as early as today) is likely to be surrounded by presidential rhetoric keyed to the most recent terrorist attack in London last week, which at the time Trump greeted by calling for a “larger, tougher and more specific” travel ban. The fact that he’s still using the “travel ban” terminology shows he’s spoiling for a new fight.