President Donald Trump has renewed a version of his first-term travel ban, and is preparing for a new legal fight as well.
“The recent terror attack in Boulder, Colorado, has underscored the extreme dangers posed to our country by the entry of foreign nationals who are not properly vetted as well as those who come here as temporary visitors and overstay their visas,” Trump said in a video announcing the move. “We don’t want ’em.”
The move was expected as Trump began the process to implement it on Inauguration Day, and is the continuation of policies implemented during his first term.
Trump issued what became known as the “Muslim ban” soon after taking office in 2017, and while that was overturned in court, a modified version was narrowly upheld by the Supreme Court in 2018. Former President Joe Biden ended that policy upon taking office three years later.
Immigration hawks feel that they’re on solid ground again this time.
Art Arthur, a fellow at the Center for Immigration Studies and a former immigration judge, said he expects legal challenges to Trump’s latest travel ban but believes the courts — and ultimately the Supreme Court — will uphold the order.
“The two orders are so similar,” he said, referring to past litigation over Trump’s 2017 travel ban, “that I anticipate that on review, they’ll be struck down [in lower courts], or the Supreme Court will simply step in and stay any injunction.”
Chad Wolf, former acting secretary of the Department of Homeland Security, similarly predicted that Trump may have trouble in lower courts.
“In 2018, the Supreme Court affirmed [President Trump]’s ability to institute these restrictions,” Wolf posted on X. “But don’t worry — the left will be running to the nearest liberal judge looking for a nationwide injunction. This must end.”
But not everyone is so sure. Ilya Somin, a law professor at George Mason University, argues that the ban could be challenged under the nondelegation doctrine, which was not addressed in the 2018 case.
“If anything violates the nondelegation doctrine, it would be virtually unlimited power over a vast area of federal policy [such as immigration],” Somin said.
Some Democrats in Congress also argue the measure violates the law.
“It’s a regurgitation of illegal, unconstitutional, immoral actions from his first term,” Rep. Sarah McBride (D-DE) told the Washington Examiner. “This does not make us safer. If anything, it undermines our national security, it undermines our values, and it violates the Constitution.”
Nationwide injunctions from lower-level judges have plagued the Trump administration since he took office, an issue on which Republicans are growing increasingly frustrated, even if more favorable rulings have come down from the high court.
Earlier this week, Sen. Josh Hawley (R-MO) lamented that judicial injunctions have led to the inability to “deport terrorists from our country.”
“The way that we’re going to have to do it is we’re going to have to stop these judges from issuing these injunctions, and it’s long past time, we can’t let this go on any longer,” Hawley said on Fox News’s Hannity Wednesday. “These individual district court judges are trying to play president, they are trying to play Supreme Court, they are trying to play legislature. They are usurping the will of the people.”
Hawley is one of many Republicans in Congress who have introduced legislation to limit universal injunctions from federal and district judges.
As of last month, the Trump administration was the recipient of three-fourths of all universal injunctions issued over the past 25 years. Judges have handed down 25 injunctions in the first five months of his second term, while Biden had just 14 during his entire presidency.
The 12 impacted countries in the latest order are Afghanistan, Myanmar, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. Citizens of those countries will not be allowed into the United States, with few exceptions.
Notably, while Trump’s first-term action was known as the “Muslim ban,” only eight of the 12 countries in the most recent iteration are majority Muslim, and the order itself refers to issues the U.S. has had with those governments, such as refusal to accept deportees. The Republic of the Congo, Equatorial Guinea, and Haiti are majority Christian, while Myanmar is majority Buddhist.
Partial restrictions will be placed on seven more countries: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.
There are exceptions to the ban, including for immediate relatives of U.S. citizens, Afghan Special Immigrant Visa holders, and people qualifying for a national interest waiver. Those already holding valid visas or with green cards are also exempt. The ban takes effect at 12:01 a.m. on June 9.
Pro-immigration groups have already hit out against the move, with Global Refuge saying it violates a “moral obligation” on the part of the U.S.
“We are deeply concerned that this ban could undermine our humanitarian leadership, delay or derail family reunifications, and significantly impact our economy and labor force,” said Krish O’Mara Vignarajah, the group’s president.
Another group, the American Immigration Council, said Trump’s order invokes “questionable legal authority.”
“When President Johnson signed the 1965 Immigration and Nationality Act, he declared that ‘never again’ will discrimination based on national origin ‘shadow the gate to the American Nation with the twin barriers of prejudice and privilege,” AIC Executive Director Jeremy Robbins said. “Unfortunately, today, President Trump once again restores that exact discrimination.”
Rep. Maxwell Frost (D-FL) criticized the policy as horrible, bigoted, and racist.
“He’s forcing people to not have an avenue to come to our country, even through the legal pathways that he campaigned on,” Frost told the Washington Examiner. “So it’s just racism, like it was the first term.”
However, none of those statements mentioned a direct legal challenge.
CATO Institute scholar Alex Nowrasteh said that the government hasn’t released its criteria for choosing which countries to place on the list, and predicted it is unlikely to do so.
Immigrants from the 12 countries with the greatest restrictions have only committed one terrorist attack since 1975, he said, a 2017 murder by a Sudanese national named Emanuel Kidega. Notably, Trump mentioned the recent terrorist attack in Colorado by an Egyptian national in justifying the ban, even though Egypt isn’t on the list.
“It can’t come soon enough,” he said of the ban on Thursday in the Oval Office. “We want to keep bad people out of our country.”
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Trump promised an immigration crackdown on the campaign trail, and has tried to deliver by shutting down the southern border and taking several controversial actions such as sending alleged gang members to a notorious prison in El Salvador. Many of his actions have been halted in court, but supporters believe this one will ultimately survive.
“This is something that they promised that they would look into on day one, and there’s plainly been a lot of thought and study and investigation that’s gone into it,” Arthur said. “I think that it has a firm foundation, and under Trump v. Hawaii, it’s going to be allowed to proceed.”
— Rachel Schilke and Lauren Green contributed to this story