Trump’s second attempt at travel ban may stand up, says U of T law professor

Donald Trump is once again looking to get his much disputed travel ban off the ground.

The U.S. president signed the revised immigration ban Monday, which includes the initial seven countries except for Iraq, as it was taken off the blacklist. The order come into effect March 16, revoking the Jan. 27 order.

For 90 days, the new order states people from Iran, Libya, Somalia, Sudan, Syria, and Yemen will not be issued visas.

As the original executive order was protested and eventually overturned last month, this revised version addresses some of the legal challenges and fine tunes the more problematic areas.

Those with a green card or visa will not be affected, and seemingly widespread airport detentions are thought to not arise this time.

However, despite these changes, issues and outcry continue to emerge.

David Schneiderman, a law professor at the University of Toronto, said it is difficult to speculate what a court will say about the new Executive Order.

“The suspicion that it looks like a thinly disguised Muslim travel ban remains,” said Schneiderman. “While nationals from Iraq have been removed from the list of designated countries, all of the other states have predominantly Muslim populations.”

He adds last week’s leaked Homeland Security documents reveal banning travellers from these countries is an unreliable indicator of potential terrorist activity.

“Just as federal courts in various states were interested in the possibility of violations of the First Amendment Establishment Clause by reason of religious discrimination in the first version of the travel ban –because of earlier statements made by then-candidate Trump and those of his top advisors –they might again be interested,” explained Schneiderman.

He went on to point out, “The revised Executive Order is designed to be more litigation-proof than the first, so the president may have an easier time in court than the last time around,” with a noteworthy revision being the exemption of green card holders and those with U.S. visas, as this decreases the denial of due process.

As well, there is no permanent ban on Syrian refugees, but it is limited to 120 days, he added.

Schneiderman said, “Indeed, standing to challenge the constitutionality of the ban may prove more of a problem.”

The legal issue of religious discrimination remains, said the law professor.

“In the first Executive Order, ‘persecuted religious minorities’ (mainly Christians) from within the banned countries were accorded an exemption from the ban. Having omitted any reference to religious minorities in the second Executive Order, this renders it a little less vulnerable to constitutional challenge. U.S. constitutional law (unlike most every other mature constitutional system) is not interested in indirect or ‘adverse impact’ discrimination. Only intentional discrimination is constitutionally cognizable. Courts may only find discrimination if it is on the face of, or just below, the record,” said Schneiderman.

He concluded the argument will be that statements made by then-candidate Trump and his advisors, “reveal that an anti-Muslim animus is behind the Executive Order.”

“Weighing against any judicial intervention is the alleged national security interest served by the ban, coupled with the statutory authority the president possesses to issue this order under the Immigration and Nationality Act. When acting under the authority of Congress, presidential power ‘is at its maximum’ and so less susceptible to constitutional attack.”

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