On April 25th, the Supreme Court will hear arguments regarding the legality of Donald Trump’s travel ban, which has been challenged by 16 states and undergone a couple revisions since it was first announced. The case really hinges on how much power the president has to make executive decisions about immigration, but new documents released by the office of Customs and Border Protection (CBP) raise even more questions about how effective his ban is in the first place. Thanks to people who requested the documents under the Freedom of Information Act, we now know how many people were affected by Trump’s travel ban and what their citizenship status was.
It turns out a lot of the people were actually permanent residents, or green card holders, which doesn’t really make much sense. Trump’s first travel ban, issued in January 2017, included barring people from Iraq, Iran, Syria, Yemen, Libya, Sudan, and Somalia from entering the U.S. for 90 days. It indefinitely suspended the resettlement of Syrian refugees and halted the U.S. refugee resettlement program overall for 120 days. This was the ban that caused people to flood the airports and the streets in protest. A week later, a federal judge in Washington put the whole travel ban on hold. The documents released last week by CBP include data about people stopped just within that nine-day period.
According to CBP, there were 1,903 people flagged for secondary inspection after the travel ban was initially issued, and most of them — a whopping 1,457 — were actually lawful permanent residents. About a quarter of the people left almost immediately withdrew their entry request, which means they would have had to leave the country immediately. The fact that people with valid permanent residency — a green card — were flagged for secondary inspection just shows that the initial ban allowed security officials to overreach. People with permanent residency have been screened and filled out all the right paperwork (and, under Trump, now have to undergo an in-person interview), and they shouldn’t be treated like criminals, which is exactly how being stopped for secondary inspection feels.
In a January 28th, 2017 memo, which was also released by the CBP under a FOIA request, the Department of Homeland Security stated that people with permanent residency weren’t covered by the travel ban and would be questioned on a case-by-case basis. Two days later, the White House released a memo clarifying that green card holders would not be stopped under the travel ban. Yet almost all of the people stopped in that nine-day period had permanent residency.
Those numbers, and the fact that people from all of the countries in the ban are mostly Muslim, really highlight that the ban had nothing to do with security or “travel” and everything to do with discriminating against Muslims, plain and simple.
In March of last year, the Trump administration came up with another version of the ban that changed some of the language. It took out Iraq, was much more clear about exempting permanent residents from being stopped, allowed anyone who already had a visa to travel to the U.S., and took out the “indefinite” part of allowing Syrian refugees to resettle here. Notably, the second version of the ban also walked back giving “religious minorities” from the listed countries (basically Christians) preference when it came to entering the country. Hawaii was the first state to challenge this version of the ban, too, and it’s that case that’s heading to the Supreme Court at the end of the month.
The new ban includes Syria, Libya, Yemen, Chad, Somalia, and Iran, which are predominately Muslim countries. It also includes North Korea and Venezuela, but they aren’t part of Hawaii’s lawsuit. Although the 9th Circuit Court of Appeals upheld that the president abused his power with the bans, the Supreme Court ruled in September that the ban could be implemented while it was being worked out in court. (Hawaii’s case is going to the Supreme Court, but the ban is also being challenged in the 4th Circuit Court of Appeals in Virginia.)
The Supreme Court has four questions to answer about the travel ban. They include whether the president has the authority to just ban people from certain countries, whether or not it’s discriminatory, and whether or not the ban violates the Establishment Clause, the rule tucked into the First Amendment that prohibits our government from establishing a national religion. Most of the federal courts that have looked into various iterations of the travel ban have found that targeting Muslims does, in fact, violate that First Amendment clause.
However, back in December, only Ruth Bader Ginsburg and Sonia Sotomayor dissented with the other justices about allowing the ban to be implemented, which doesn’t really bode well for arguments later this month. The administration is banking on the fact that including countries that aren’t predominantly Muslim in the third version ban means it’s non-discriminatory. The fourth question the court is going to consider is whether all the challenges to the ban are “moot” now that it’s been amended so many times.
Just because the ban has been edited and reworded doesn’t mean that it’s not intended to target Muslim people, as Trump’s own statements and tweets have shown, and the fact that in the first days of the ban, most of the people stopped had every reason to be there. If it weren’t for the challenges, the administration would have likely kept it that way, which is something the justices can hopefully consider — because that kind of abuse of power is scary.