The 4th Circuit U.S. Court of Appeals shot down President Trump’s travel ban 10-3, leaving the earlier-imposed freeze largely in place, because it allegedly discriminated against Muslims, but the result might have been avoided had the President’s lawyers not made what appears to be a fatal mistake, says public interest law professor John Banzhaf.
Trump’s lawyers could have seriously undercut if not eviscerated the argument that the ban intentionally and unconstitutionally discriminated against Muslims by simply adding one or more non-Muslim countries to his second executive order, says Banzhaf, who predicted this very result.
Although Banzhaf believes a temporary ban, naming only Muslim-majority countries, would be constitutional so long as it targets only foreigners who have never visited the U.S. – and not permanent residents, or those lawfully in the country – he notes that virtually all the judges who reviewed the order, including now the 4th circuit, were concerned that the order appears to be anti-Muslim – and therefore arguably based upon invidious religious bias – because it lists only Muslim-majority countries.
“Even if I believe I have a strong case, I would certainly seek to strengthen it – bulletproof it from foreseeable legal attacks – if a judge expressed concern, and if I could fix it easily,” says Banzhaf.
Here several different judges tentatively concluded that the ban represented religious discrimination because only Muslim-majority countries were singled out, so prudence and a concern for upholding his power to restrict immigration strongly suggested adding one or more additional countries.
“Adding even one non-Muslim country – for example North Korea – would significantly help to undercut this legal argument,” says Banzhaf, noting that there is precedent for exactly such a move.
For example, at one point the Transportation Security Administration [TSA] automatically singled out for secondary screening all persons with passports from twelve countries. These included not only Muslim-majority countries, but also two non-Muslim countries: Cuba and North Korea.
Similarly, the National Security Entry-Exit Registration System [NSEERS], which was initiated as a direct response to the 9/11 attacks by Muslims, required registration and reporting by male visitors from 25 countries, including one which was not Muslim-majority. Both were not challenged.
A judge in Virginia had issued an injunction preventing the enforcement of the order after expressing strong concern that it discriminated on the basis of religion because all of the countries named in it were Muslim-majority countries. Other judges, although not ruling on this particular basis, nevertheless expressed some concern that it might be illegally targeting Muslims based upon their religion.
It certainly would not be hard to justify adding a few more countries to the list of those singled out as posing an enhanced risk of terrorism. One of the arguments for including these countries, and not many others in the region, is that their weak and ineffective governments mean that identity documents are very easily forged, and there are often no reliable records of criminal activity, so vetting is very difficult.
But exactly the same argument can be made about several war-torn African countries such as South Sudan and the Central African Republic, says Banzhaf. Adding those two countries, in addition to North Korea, would have seriously undercut any argument that only Muslim-majority countries were targeted – and targeted for religious reasons – and this change is also unlikely to trigger any wide-spread public disapproval as the two original travel bans did.