The administration probably hopes that the discrimination claim will be undermined by the inclusion of North Korea and Venezuela. But the US, in any event, gets almost no immigrants or visitors from North Korea, because that government forbids emigration. And the Venezuela restriction applies only to a small group of government officials and their families (ostensibly to pressure them into cooperating with US security policies). In practice, virtually all the people actually affected by the order will be citizens of six Muslim-majority nations. The inclusion of North Koreans and a few Venezuelans in the order appears to be mainly a diversionary tactic, not a serious policy initiative. Or, as Peter Margulies puts it (channeling Woody Allen), it is a “travesty of a mockery of a sham.”
Much like its predecessors, the new order actually imperils national security more than it helps it. It does so by barring the immigration of citizens of these nations (most notably, Syria, the focus of the current war against ISIS) even if they have aided US forces in the fight against terrorism. Under the order, consular officials can potentially grant waivers to some such individuals, if they conclude that they are not a threat to national security, that barring them would cause “undue hardship,” and their entry would serve “the national interest.” But if I were a Syrian or Somali considering helping the US, I would not want to bet my life on the discretion of low-level bureaucrats, especially in an administration deeply suspicious of immigration.
The new order also undermines security by gratuitously alienating people in the covered nations. Many migrants seeking to enter the US from them are actually fleeing the very same radical Islamist forces we are fighting ourselves. For example, the order categorically bars all immigration by Iranian citizens, even though Iranian immigrants to the US are notable for their opposition to that nation’s oppressive theocratic regime. In this respect, the order is a propaganda gift to ISIS, the Iranian government, and our other enemies, who can now more credibly claim that the US is hostile to Muslims, as such, regardless of whether they support radical Islamism or not. For this very reason, ISIS supporters hailed Trump’s original travel ban order as a “blessed event,” and this one will probably make them happy too.
The new order does differ from the earlier ones in one genuinely important respect: it does not include any categorical ban – either temporary or permanent – on refugee admissions. Morally, this was the cruelest and least defensible provision of the previous two iterations of the travel ban. But, legally, it was far less open to challenge than nation-specific bans, because – among other things – it did not obviously discriminate on the basis of religion. It remains to be seen whether Trump has given up the idea of severely limiting refugee admissions, or whether he will simply choose to do it in a separate order.
In sum, it seems safe to say that the legal battle over Trump’s travel bans is far from over. Most of the same legal challenges raised against the second order can also be raised against this one. And it is very likely that they will be.
The interesting immediate question is what the Supreme Court will do with the cases currently before it, challenging the legality of the earlier travel ban order. For reasons well summarized by Georgetown law professor Marty Lederman, the Court might well declare these cases moot and decide not to consider them. Earlier today, the Court issued an order cancelling the previously scheduled October 10 oral argument date for these cases, and asking the parties to file letter briefs on the issue of whether the new order renders them moot.
If the Court does decide the current travel ban cases are moot, litigation on the new order will almost certainly soon commence in the lower courts, as a variety of state governments and private parties challenge its legality. Alternatively, the justices could try to continue with the current cases, in part because they raise many of the same issues as new litigation would. We will soon see what the court decides on that score. But either way, this fight is almost certainly going to continue.
UPDATE: It is perhaps worth noting that the new travel ban is officially labeled a “proclamation” rather than an “executive order,” as the previous two travel ban policies were. But I see no meaningful legal difference between the two, nor is this terminological difference likely to influence the outcome of any challenges to the new policy.