Legal commentators suggested that the third version of the Trump travel ban, the September 24 Proclamation, would be harder to challenge because the Proclamation was issued after a government review as to which countries met the “global requirements for information sharing in support of immigration screening and vetting.” The government concluded that the countries covered by the Proclamation were deficient in meeting these standards.
At least for now, the commentators were wrong. The Proclamation was scheduled to take effect today at 12:01 a.m. EDT, but yesterday a federal judge in Hawaii blocked it as to the six Muslim-majority countries covered by the Proclamation. (The parties challenging the Proclamation in court did not challenge the travel ban as it applied to North Korea or Venezuela.)
As discussed in our previous Immigration Dispatch, the broader and more-nuanced “travel ban 3” was issued to replace “travel ban 2,” which was issued on March 6. The Proclamation applies to eight nations - Iran, Libya, Somalia, Syria and Yemen, all of which were covered by the March 6 travel ban, plus Chad, North Korea and Venezuela. Sudan, which was included in the March 6 travel ban, was removed from the list of restricted nations in the Proclamation.
Under the Proclamation, different restrictions apply to each nation based on the security risk posed by nationals of that country and, unlike the prior travel bans, the Proclamation has no end date.
According to the court in Hawaii, the Proclamation suffered from “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...’” The Court further held that the Proclamation “plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) [of the Immigration and Nationality Act] and the founding principles of this Nation.”
The court entered a Temporary Restraining Order barring enforcement of the travel ban by the Acting Secretary of Homeland Security, the Secretary of State, or their agents and employees. The court also declined to delay enforcement of its Order or to hold it in abeyance should an emergency appeal of the Order be filed.
The Trump Administration is expected to take immediate action to get the Order overturned or, at least, stayed. In the meantime, the travel ban as applied to nationals of the six Muslim-majority countries - Iran, Libya, Somalia, Syria and Yemen, all of which were covered by the March 6 travel ban, plus Chad – is lifted.