As you might recall, various district judges around the country struck down Trump’s first and second travel bans as unconstitutional on the basis that they discriminated against Muslims. But President Trump didn’t give up: he decided to replace these two previous attempts with a brand new, third, travel ban.
This new ban eliminated Sudan from the list but added Chad, Venezuela, and North Korea. Trump alleges that these countries were chosen based on confidential information that shows that those governments do not do enough to stop terrorism at home.
The travel prohibition should not affect people who already have a visa. However, once their visas expire, they probably will not get a renewal.
Why did Trump add new countries?
It seems that Trump added Venezuela and North Korea – countries that are not predominantly Muslim – in order to fight the critics who stated that his bans were unconstitutional because he was blatantly discriminating against Muslims. By “critics,” I mean courts. In fact, this was one of the main reasons why district courts around the country struck down the previous travel bans.
Hence, his advisors probably told him to add some unfriendly countries that are not Muslim so that the courts cannot claim that the government is discriminating against Muslims. If Trump convinces the courts that his chief motivation is a concern for national security – instead of a desire to discriminate against Muslims – the courts would most likely uphold the travel ban as a constitutional exercise of Executive power.
Will this third attempt work?
So far, two district courts – in Hawaii and Maryland – ruled that this ban was also unconstitutional. The judges stated that the President went beyond the authority that the Constitution grants him on immigration (basically, that this is a power for Congress and not the Executive).
Judge Watson in Hawaii found that there was no correlation between national security risks and the nationalities that Trump was banning. In other words, that there was nothing indicating that someone’s country of origin would make them more likely to be “terrorists.” Due to these findings, the travel restrictions currently remain applicable only to Venezuela and North Korea.
The government just filed an appeal, however, which means that a court of appeals will now have to rule on the constitutionality of this ban. This case will undoubtedly end up being heard by the Supreme Court and – in part due to the makeup of the Court and the assertions the Justices made when ruling about the previous ban – I am afraid that the Supreme Court will find most of this travel ban constitutional and defer to the President’s vast authority in immigration and foreign affairs.