September 25, 2017 at 6:01 PM
President Trump's latest travel ban could block the issuance of tens of thousands of visas each year to people who want to immigrate to the United States or come on business or as tourists, according to a Washington Post review of State Department data, and it is threatening to short-circuit the impending Supreme Court showdown over whether Trump can lawfully impose such wide-ranging travel restrictions.
On Monday, the Supreme Court put off — at least for now — a hearing on Trump's previous travel ban, asking instead for briefs on whether the latest restrictions mean there is nothing left for the justices to decide.
Opponents of the ban, meanwhile, vowed to fight on — asserting that the new measure inflicted some of the same harms of the first and that it was driven by the same discriminatory intent.
"For us, this was a Muslim ban, and it remains a Muslim ban," said Zahra Billoo, the executive director of the San Francisco chapter of the Council on American-Islamic Relations.
The newest ban is in some ways even more expansive than the last — remaining in effect indefinitely and imposing restrictions on eight, rather than six, countries. But unlike the last ban, the restrictions vary from place to place, and countries that increase their cooperation and information-sharing with the United States might be able to find their way off the list.
For Syria and North Korea, the president's proclamation blocks immigrants wanting to relocate to the United States and non-immigrants wishing to visit in some capacity. For Iran, the proclamation blocks both immigrants and non-immigrants, though it exempts students and those participating in a cultural exchange.
The proclamation blocks people from Chad, Libya and Yemen from coming to the United States as immigrants or on business or tourist visas, and it blocks people from Somalia from coming as immigrants. The proclamation names Venezuela, but it only blocks certain government officials.
A Washington Post review of State Department data found that more than 65,000 visas were issued in fiscal 2016 that would now likely fall under the ban. The ban, though, contains a robust list of people who might qualify for a case-by-case exception, including those with significant U.S. contacts or those wanting to visit close family members.
The ban also exempts those already admitted to the United States on the effective date of the proclamation — which, for those not affected by the previous travel ban, is Oct. 18.
The Supreme Court had been set to hear arguments on Trump's previous travel ban, inked in March, but on Monday, it removed that hearing from the calendar and asked for briefs on whether the case was now moot.
One significant piece of the previous executive order — the 120-day ban on all refugees entering the United States — remains in effect until Oct. 24. The latest ban leaves unclear what will happen after that. U.S. officials have been discussing possibly lowering the refugee cap for fiscal 2018 to below 50,000. The fiscal year begins Sunday.
Many legal observers think the new directive will make moot the court's examination of the second executive order. While the court's three most conservative justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — would have allowed Trump's order to go into effect as written, the rest of the court has looked for a middle ground.
"It's hard to see how the court will have much appetite to decide" the merits of the dispute with a new order in place, Kannon Shanmugam, a Washington lawyer who argues frequently before the court, said last week.
In their initial briefs, lawyers for challengers of the executive order — immigrant groups and the state of Hawaii — as well as the Justice Department argued that the case was not moot. Those arguments came before the latest order was issued but with an awareness that the ban could expire before the court heard the case. After the new proclamation was released, Solicitor General Noel J. Francisco suggested to the justices that they order new briefings from the parties about how it affected the case.
Opponents of the ban were largely mum on what the legal path forward would be.
"It does continue to injure our current plaintiffs," said Justin Cox, a staff attorney at the National Immigration Law Center.
To establish the new ban, U.S. officials conducted a worldwide review of the information countries were able to provide on their travelers wanting to come to the United States.
Initially, 16 countries were deemed inadequate, and 31 were at risk of becoming inadequate, authorities said. U.S. officials then negotiated with foreign counterparts, ultimately producing a list of eight countries that were either unable or unwilling to provide the information the United States wanted.
Sudan was dropped from the ban list, and its removal is noteworthy in part because it is one of just three countries designated by the U.S. government as state sponsors of terrorism. The other two, Iran and Syria, remain on the travel ban list.
Chad, North Korea and Venezuela were added. Those in Chad, in particular, seemed surprised.
"The reaction has been astonishment and then indignation," said Nour Ibedou, director of the Chadian Human Rights Association. "We do not understand how our country achieved this lack of trust from the United States."
Administration officials can now point to Venezuela and North Korea as being non-Muslim majority countries on the banned list — perhaps undercutting the argument of opponents that the measure is meant to fulfill Trump's campaign promise of a Muslim ban. But ban opponents note that the restrictions on Venezuela affect only government officials and that few people from North Korea travel to the United States.
Venezuelan Foreign Minister Jorge Arreaza said the new ban was an "unfounded strategy" against the South American country.
"We're looking for dialogue; we're looking for channels," he said. "We have to stop the madness and irrationality."
If the Supreme Court case over the ban is declared moot, there could be disagreement on what happens next. The government wants the high court to vacate the two appellate court decisions that said Trump's executive order could not be enforced and the precedent that would come with them. A panel of the U.S. Court of Appeals for the 9th Circuit said the order violated federal law, while the U.S. Court of Appeals for the 4th Circuit said Trump's ban was unconstitutional.
There is precedent for the Supreme Court to vacate those rulings. In a 1950 ruling in a case called United States v. Munsingwear, the court held that where intervening mootness prevents review of a lower court's decision, that decision should be vacated. But challengers of the ban assert in their briefs that should not be the result in this case here.
The ban could also face new legal challenges. But legal analysts said those suing would probably face immense hurdles.
"My prediction is that given the importance of these powers, it's very likely that the court will hold that the new measure contains the type of rigorous analysis and measured policy choices necessary to pass constitutional muster," said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama's Justice Department. "And, I do not see the Supreme Court holding any part of this new directive unconstitutional."
Kevin Sieff in Nairobi, Emily Rauhala in Hong Kong and Rachelle Krygier in Caracas, Venezuela, contributed to this report.