Third Travel Ban Blocked by US Federal Judges

Trump_signing_order_January_27

The White House’s third travel ban took effect this Wednesday. However, Judge Derrick Watson (Hawaii) granted a Temporary Restraining Order (TRO), temporarily restricting its application nation-wide. Under s.2 of the Proclamation (EO3), this latest revised travel ban includes Iran, Libya, Syria, Yemen, and Somalia. Newly added are Chad, North Korea, and Venezuela. It no longer includes Sudan and Iraq, as these countries have met their standards for information sharing and security checks, according to the White House.

“…until [listed countries] satisfactorily address the identified inadequacies, I [President Donald Trump] have determined…to impose certain conditional restrictions and limitations…on entry into the United States of nationals of the countries identified in section 2…” (The White House, Proclamation No.9645, Enhancing Vetting Capabilities, September 24th, 2017).

The concern addressed in EO3 is that travelers from these countries cannot be adequately vetted, thus posing potential security risks. Judge Watson, however, ruled that EO3 is unconstitutional, discriminatory, and cannot be justified or enforced. “EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” ” (Judge Watson, October 17th, 2017, Hawaii v. Trump).

Although it is within the power of the presidency to make proclamations and executive orders to restrict entry into the United States, under the constitution, the restriction cannot be on the basis of race, religion, or nationality, unless there is sufficient evidence to support that such a restriction is justified as reasonably necessary. A similar decision regarding EO3 was made by Maryland Judge Theodore Chuang, reiterating many of the objections that were made to EO2.

Although counter-terrorism measures and addressing security threats can be used to justify travel restrictions, federal judges Chuang and Watson have both argued that the travel bans are motivated by racial prejudice, evidenced by President Trump’s campaign promise to ban Muslims. Moreover, aside from Venezuela and North Korea (for which the restrictions against them are still in effect), the countries’ populations are predominantly Muslim and have not been shown to pose the security threat EO3 claims.

Also, an update from last week how the ban has impacted Canada: the Immigration and Refugee Board has released statistics regarding asylum seekers entering at illegal points of entry.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.

About the Author

Nathan Prendergast
Nathan is a second year in the JD program at the University of Windsor Faculty of Law.