Trump’s Travel Ban Faces Fresh Legal Jeopardy

Prof. Robert L. Tsai, Mar. 27, 2019

"At the time of the high court’s ruling, the key question was whether the policy was constitutional as written. But now, more than two years since Trump first issued the ban, the question isn’t simply whether the travel ban is up to snuff; it’s whether evidence demonstrates the law is equitable in practice—and whether its real-world enforcement is as fair as the administration promised the justices. There are plenty of reasons to believe it is not. ... New lawsuits challenging the ban bring into play court precedents that were not raised in the initial travel ban lawsuits—cases involving laws that were facially neutral but discriminatory in practice, and which were struck down on that basis. ... During the first full year of the waiver program’s existence, 98 percent of waiver applications were denied. Then, just last month, the State Department finally released a report that showed 2,673 waivers were granted in fiscal year 2018, while 37,000 visas were refused—meaning a whopping 94 percent of waivers were still rejected during the longer time frame. ... Two lawsuits in federal courts—one in California and another in Maryland—are demanding answers to such questions, seeking records that would allow us to glean how waiver decisions are being made on the ground."

Robert L. Tsai is professor of law at American University and the author of Practical Equality: Forging Justice in a Divided Nation. Follow him on Twitter@robertltsai.