The latest iteration of President Trump’s travel ban is finally about to go into effect for six majority-Muslim countries — but, again, it’s the courts rather than the White House setting the terms.
On Monday, judges from the Fourth and Ninth Circuits of the US Court of Appeals issued rulings that, in effect, allow the US to ban some residents of Chad, Iran, Libya, Somalia, Syria, and Yemen indefinitely, while the lawsuit against the ban’s constitutionality makes its way through the courts. (Travel bans on Venezuela and North Korea were already in effect.) The circuit courts are partially superseding rulings from lower-court federal judges, who had put the ban on hold entirely for majority-Muslim countries.
But the circuit court judges limited the ban to people from those six countries who don’t have a “bona fide relationship” — such as family ties or a business connection — to a person or organization in the United States. As a result, the ban is most likely to affect tourists and refugees.
That “bona fide relationship” language might sound familiar. It’s the same standard the Supreme Court used in June, when it allowed the previous version of the travel ban to go into effect.
Compared to the first two rounds of the travel ban battle, the Trump administration is getting a (relatively) favorable court ruling much more quickly this time. Despite the nationwide backlash provoked by the first clumsy iteration of the travel ban in January, Americans aren’t as exercised about it when it’s being implemented out of their sight.
A court compromise
Since we’re now on the third version of the Trump administration’s travel ban, a brief review: The first version of the travel ban was issued in January, was in effect for a week before being put on hold by the courts, and was withdrawn in February. The second was issued in March, was put on hold by the courts before its start date, was finally allowed to go into effect by the Supreme Court in June, and expired in September. The current version was issued at the end of September, was put on hold before it was set to go into effect, and is now being allowed to proceed (for people without bona fide relationships) in November.
In other words, the administration has been finding a little more legal success with each version of the ban — which makes sense, since it’s deliberately written each executive order to be more careful than the last.
All of these rulings have been temporary — they’re rulings about what the government should do while the courts decide if the ban is constitutional or not. But the fact that the circuit courts are willing to adopt the Supreme Court’s standard of a ban that excludes people with a “bona fide relationship” indicates that the idea is rapidly being accepted by the courts as a compromise position.
In practice, as I wrote in June, most visa holders can easily show they have a bona fide relationship by the Supreme Court’s standards. While the Trump administration tried to argue that some relatives (like grandparents) didn’t count as “bona fide” relatives, they’ve been rebuffed by the courts; as a result, most family relationships count as members of the “immediate family.” And people coming to study, teach, or speak at American schools, or work for American businesses, qualify as “bona fide.”
The two groups who will be most affected by ban 3.0 — just like they were by ban 2.0 — are tourists and refugees.
Refugees, according to a Trump administration decision that the courts haven’t overturned, don’t count as having a “bona fide” relationship with a US organization — even though every refugee is placed with a US resettlement organization that agrees to sponsor them before they arrive.
The Trump administration has already slowed refugee admissions to a crawl (it’s set the lowest cap for refugee arrivals in the history of the program, and it’s admitting refugees so slowly that it’s not even on pace to meet that) — and it will now be able to stop Syrian refugees from settling in the US entirely, again.
But that was also true during the summer, when the administration banned all global refugees. And while some communities that were particularly excited to welcome refugees were disappointed, most Americans — even those in the anti-Trump “resistance” — didn’t seem particularly incensed. The summer travel and refugee bans didn’t evoke the outrage and protests that the first version of the travel ban did.
The current travel ban, like its predecessor, will be enforced far from American shores. It will happen just as quietly, if not more so, as travel ban 2.0 did. And the courts are beginning to assume that this is, for the moment, a constitutionally acceptable outcome.