Refugees and other foreign nationals at airports have understandably drawn the attention of those opposed to President Trump’s travel bans. The real effect of those bans, however, extends well beyond the airports. Also, the full extent of the orders has yet to be determined. This means that for those opposed to the bans, the fight has just begun.
Please note, a comprehensive discussion of the January 27 order is in an earlier blog post here.
First, remember, the vast majority of those harmed by the executive order will not even make it to a U.S. airport. Instead, they will be denied entry documents or not be permitted to board a flight to the United States.
Moreover, the full extent of the bans is still unknown because of how the order is written. They could be relatively short term but have the potential to extend indefinitely. The order contains room to create large exceptions, but also the opportunity for expansion.
The bans could end in months- or be extended indefinitely.
Except for the indefinite ban on Syrian refugees, the travel bans are temporary but could easily be extended. The entry ban for nationals of Syria, Iran, Iraq, Somalia, Sudan, Yemen, and Libya technically is for ninety days. The ninety-day window is to reduce the burden on government agencies responsible for reporting to the President about necessary security measures to ensure foreign nationals are not a security threat and identify countries which do not provide the necessary information.
If the agencies are not able to make sufficient progress in ninety days, therefore, the ban can easily be extended. What is sufficient progress? What measures will there be? How long will it take to complete this process? Keep in mind strict security measures for entry into the United States are already in place. There are no clear metrics, providing an easy justification to extend the ban.
The ban on refugee admissions is at least for 120 days, at which point only refugees from those countries with government agencies have deemed there are adequate security and identification safeguards. Again, while this sounds reasonable initially, refugees already face rigorous vetting. Without clear metrics, the refugee ban could easily extend beyond 120 days, especially for those fleeing the most dangerous conditions.
More countries may be added
In addition to the seven countries already listed in the travel ban, the order requires the Secretary of State or Homeland Security to identify, within 60 days, any others which they deem insufficiently cooperative in identity and security investigation. Moreover, the agencies can add more countries after 60 days if they find the need arises.
As discussed above, the security and identity concerns raised in the memo are already part of the vetting process, and there are no metrics for determining compliance. Therefore, the order could readily be applied to bar admission to nationals of many more countries.
Exceptions in the “national interest”
Even now, the order may be limited by establishing exceptions in the national interest. While the legality of many aspects of the order is questionable, the legal basis for the bans is a law which allows the president to deny entry to foreign nationals who would be “detrimental to the interests of the United States.” Therefore, entry is permitted on an individual basis upon demonstration it is in the national interest.
In fact, “national interest” has already limited the application of the order. Initially, the travel ban extended to lawful permanent residents of the 7 named countries. That ban was quickly lifted, however, upon a finding that admitting lawful permanent residents was in the “national interest”. (That it was almost certainly illegal to ban lawful permanent residents probably also had something to do with it.)
Though it is a small exception now, the “national interest” has no concrete definition and could be a tool to exempt even more people from the order.
Bean + Lloyd wholeheartedly supports, and has taken part in, efforts to help refugees and others facing travel bans at airports. The need to fight the bans, however, will extend well beyond the airports.
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