The travel ban is back, but you wouldn’t know it at the airports.
In January, the first time the Trump administration attempted to ban people from several majority-Muslim countries from entering the US for 90 days, and refugees for 120 days, it produced chaos: massive protests, widespread detentions of people arriving at American airports, a flurry of legal challenges that ultimately put the ban on hold after a week.
But on Thursday night, when a version of the ban (based on a second executive order Trump signed in March) was allowed to go into partial effect thanks to a Supreme Court ruling, airports were quiet.
It’s not because the Trump administration implemented this ban perfectly — it made one important change to who’s banned and who isn’t right before the ban went into effect, and further changes could be on the way. But it was smooth enough to avoid a political uproar or a midnight courtroom fight.
In one respect, that’s a victory for the ban’s critics. But it’s also a serious challenge. The ban, as it’s instituted right now, folds neatly into the things in existing immigration law that often seem maddening, unjust, or discriminatory — from the way different family relationships are categorized, to differences in treatment among people of different nationalities.
But if the way the ban works now looks pretty normal by the standards of the current immigration system, the principle it’s setting in place could be deeply pernicious. The Trump administration is trying to push beyond a system in which people are often discriminated against in silence, to one where they are openly, and exclusively, judged based on how much the US likes their government. The seeds of that system were planted last night.
The Trump administration did what it had to do to prevent airport chaos — which also protects it in court
The backlash against the first travel ban, in January, was so powerful because it took place in two different arenas. In the airports, protesters amassed to welcome new arrivals and pro bono lawyers lined up to assist detainees; in the courts, advocacy groups used those detainees’ cases to get judges to limit the scope of the ban.
The two fed off each other. The spectacle of the airport protests, with thousands of Americans schlepping out to show solidarity for people they’d never met, made it harder for courts to dismiss the lawsuits against the ban by saying the national interest justified sweeping executive power. But the protests were given continued momentum by the fact that the ban’s challengers kept winning in court: The first ruling against the administration, ordering it to release some of the immigrants being held in custody at airports, came when the ban had been in effect for less than 24 hours.
This time around, the administration did what it had to do to eliminate airport chaos. The executive order that’s now partially in effect, signed by Trump in March, allowed anyone with a valid visa to come to the US. Since people can’t get onto US-bound planes without valid visas, it took away any opportunity for Customs and Border Protection agents to use the ban as a reason to prevent someone from formally being admitted to the US after he’d already arrived on American soil.
While Department of Homeland Security officials stressed Thursday that they retained the right to detain people from the six countries, and deem them “inadmissible,” for independent reasons, it appears that CBP agents didn’t choose to use that privilege against anyone from the six countries on the first night of the ban.
That doesn’t just rob the opponents of the ban of an easy opportunity to mobilize protest. It robs them of a way to challenge the government’s actions in court. You can go to court to force the government to release someone it’s holding in custody in the US. But if the government isn’t holding anyone in custody here, and is only exercising the ban abroad when it comes to granting visas to begin with, you can’t go to court to force them to let somebody in.
Immigration law doesn’t recognize a right to come to the US. It only recognizes the rights of Americans to bring people here.
It’s a longstanding principle of immigration law that you can’t go to court to challenge a visa denial. (Literally, the term is “consular nonreviewability”; courts can’t challenge decisions made by consular officers.)
But if you’re already in the US, and you’re trying to help someone else come here whose visa is denied — whether it be a visiting scholar or a family member — you can try to take the government to court to claim your rights have been abused. (Then it’s up to the courts to decide if denying entry to the person denies you of a particular constitutional right, and how that right should be balanced against the government’s invocation of national security.)
While the lawsuits against the travel ban are ultimately about the constitutionality of the policy, this is the reason that they were allowed to go to court to begin with: US-based people and entities argued that the ban would hurt them.
On Monday, the Supreme Court tried to make a deal. It allowed the Trump administration to implement the ban for anyone who didn’t have a “bona fide relationship” with someone or something in the US. That standard didn’t previously exist in immigration law (which is why there’s been so much attention to how the Trump administration defines it), and rhetorically, it sounded like the Supreme Court was saying that people were only likely to be terrorists if they didn’t know anyone here.
But the real basis was legal. The court’s examples of “bona fide” relationships covered most, or all, of the people who’d been able to sue the administration over the travel ban to begin with. It limited the pool of future lawsuits by cutting out most of the people who’d be able to sue in the future, too.
The Trump administration, unsurprisingly, took as narrow a definition of “bona fide” relationship as possible in the guidance it sent out to US consulates Wednesday night — thus raising the possibility that it would get sued by, say, grandchildren trying to bring their grandparents to the US, or one member of an engaged couple trying to bring his partner. But it reversed itself on fiancés mere minutes before the ban was going into effect, and it appears to be taking its time to decide one of the biggest outstanding questions about “bona fide” relationships (what it means for refugees who’ve been accepted by a resettlement agency) as well.
Those uncertainties and outright reversals are bad for visa applicants and refugees, to be sure. But they’re slowly bringing the travel ban to a point where it’s going to be very difficult to challenge here.
The things that seem unjust about the existing ban are injustices baked into immigration law
America now has a travel ban that’s being enforced primarily off American shores, at US consulates. And US consulates are already something of a black box. The reasons that people are allowed to get visas to the US, or can be denied them, often rely on subjective standards and byzantine classifications — and often get applied differently based on the country the person is coming from.
So the US government is now in the position of saying that stepfathers are a “close” enough relative to be “bona fide,” but grandparents aren’t. That may sound weird, or unfair, sure. But US immigration law is in the business of distinguishing between degrees of closeness between family members based on their precise relationship. Whether the adult child of a US citizen is married or not can mean the difference of years (or decades) in when she’s eligible for a green card.
The process of proving a “bona fide” relationship to an American business is just a different (and almost certainly more stringent) level of scrutiny that’s brought to anyone applying for a temporary visa for business travel. And those visas, ban or no ban, are often denied — with no explanation at all.
The travel ban explicitly puts these standards in place for some countries but not others. But it’s been clear for a while that different consulates have different standards for scrutiny, based on their assumptions about what people in those countries typically do once they’re in the US. The travel ban will almost certainly prevent some people from being able to come to the US for a relative’s wedding, for example; but in many countries, like the Philippines, it’s very difficult for certain people (like single women) to get visa approvals for such things to begin with.
What this means, of course, is that it’s going to be extremely hard to tell the people who are being denied visas because of the travel ban from people who are being denied visas for any other reason. This could create an opportunity for the administration to try to undermine the Supreme Court: It could get stricter about denying visas to people from the six blacklisted countries who have bona-fide relationships — and therefore shouldn’t be banned from the US — based on the existing, already-opaque standards for visa denial. But then again, it could have done that even if the Supreme Court hadn’t allowed the ban to go into effect.
The ban was never about what the administration could do, but what it could say it was doing
Many people have looked at the gap between the original executive order signed in January and the policy that actually went into effect Thursday night and concluded that the administration has lost. The ban, as it’s happening, isn’t nearly broad enough to justify what the administration claimed were imminent security concerns. “At what point,” asked BuzzFeed’s Chris Geidner on Twitter Thursday night, “have you diminished and revised and downsized your policy so much that, whatever it's doing, it's not doing what you wanted?”
This question has one meaning at, say, the Supreme Court, which will take up the full travel ban case in the fall. But it has another meaning in the meantime, as it’s being practiced now and for the next 90 and 120 days.
Because the visa process is already so opaque and subjective, much of what the ban actually does could have been done in other ways. Sure. But the ban’s real purpose was always to be able to say, openly, that the administration was doing this — as a message to Trump’s base; to would-be immigrants abroad, now told that America doesn’t necessarily want them; and to foreign governments.
The last one isn’t talked about so much. But it’s key. The way Trump’s executive order is set up, the current blacklist of countries is temporary. It’s supposed to be replaced, after a review of visa procedures, with a list of countries that don’t provide enough information on visa applicants for the US’s liking — and, unless those countries don’t shape up, their nationals will be banned from entering the US indefinitely.
An indefinite ban could have huge effects on admissions to the US — especially for refugees, who are often nationals of “failing” governments or governments that don’t want them to be allowed to leave. It’s also a powerful bargaining chip in international negotiations.
The Trump administration has taken the first step toward setting an immigration policy that deals with human beings based exclusively (or at least overwhelmingly) on whether or not it trusts their governments. But it’s doing so out of the public eye — and largely out of the reach of the courts.