Here Are Some Ways To Try To Make The Immigration Ban Constitutional
WASHINGTON, D.C. (February 16, 2017) – The Trump Administration declared that it will rescind its controversial immigration executive order, and replace it with a new one which they hope will withstand constitutional and other legal challenges, notes public interest law professor John Banzhaf, who had predicted this as the only viable legal strategy in view of the outstanding injunctions and other legal problems.


Temporary Restraining Order
Temporary Restraining Order Unsplash / Pixabay

He had also promised to introduce “additional national security measures,” and this might well include following the lead of Germany, and requiring at least some suspicious immigrants to wear GPS ankle monitors so they can easily and inexpensively be monitored, says Banzhaf.

To very substantially improve the chances that a new immigration order would not be stayed, and would ultimately be upheld, Banzhaf suggests the following simple changes.

First, make it clear that the order does not include green card holders. His legal counsel had already made that determination, but the 9th circuit refused to recognize that it has any legal weight.

Indeed, says Banzhaf, since people now in the U.S. – and probably some who have been here but departed – may acquire some rights not possessed by foreigners who have never been here, the order most likely to survive would be one limited to people abroad who have never been here, or even had a visa.

Second, the new executive order should add North Korea, and perhaps even one or two more non-Muslim countries, to the list to further undercut any argument that the order is motivated by animus based upon religion. There’s clear precedent, since the TSA mandated secondary searches for all passengers from twelve named countries, with all but two Communist nations having a majority Muslim population.

Third, restrict the drafting, and all meetings and communications relating to the drafting, to government employees only. This would avoid many legal complications such as those created by former New York mayor Rudy W. Giuliani who said President Trump wanted a “Muslim ban,” and requested he assemble a commission to show him “the right way to do it legally.”

Fourth, provide that at least high ranking officials have some discretion to waive the ban in cases of clear hardship. This would avoid compelling situations such as a former translator being stopped in mid journey, a child scheduled for a life-saving operation being denied it, people arriving at airports only to be deported, etc.

Better yet, also provide some transition language: e.g., the new order would not apply to people in the air on a flight to the U.S., people on a plane waiting for the flight to take off, etc.

Fifth, provide at least some justification for the new restrictions. For example, note that people from some of these countries have become terrorists in other countries, and that their unstable governments make it especially difficult even to verify identities, much less to adequately vet the subjects.

If the courts rule that Trump cannot ban people from certain countries, he might want to follow the lead of German and require some to wear GPS ankle monitors.

This would be much more likely to be upheld because it is far less intrusive than a ban, and because customs authorities already use them in thousands of non-criminal situations, says Banzhaf.