New on Lawfare: Reality Sets in for Federal Courts: The Travel Ban Was a ‘Temporary Pause’

September 25th, 2017

Lawfare has published my piece on the President’s latest proclamation. It begins:

After eight months, thousands of pages of briefing and three Supreme Court orders, the Trump administration has reiterated what had been its position all along: that a pause on the entry of immigrants from certain at-risk countries was needed to give the government an opportunity to reassess its policies. Since the first executive order in January, talented lawyers ably told the story that this rationale was always a pretext for Donald Trump’s Islamophobia. Respected jurists accepted that narrative and issued nationwide injunctions that barred the president from exercising his constitutional and statutory authority.

With the president’s proclamation Sunday, reality has set in. Even while charges of animus and bigotry were flying, behind the scenes, the executive branch undertook a methodical review of the “identity-management and information-sharing capabilities, protocols, and practices” of more than 200 nations. The proclamation noted that this was “the first such review of its kind in United States history,” and could not have been conducted in the first week after the inauguration or, for that matter, in March. The earlier executive orders were never designed to implement a permanent travel ban against Muslims but, instead, were needed to provide a “temporary pause,” during which a new policy could be reviewed and implemented. And the rationale for selecting these countries was based on objective criteria regarding how each nation shares information with the United States—precisely the grounds stated in the March executive order.