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What Trump could do if travel ban struck down

Art Moore

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President Trump’s revised travel ban, at its core, is constitutional, contends a prominent Georgetown law professor.

But if the administration continues to be thwarted by federal courts, it could implement an alternative security measure that would be authorized by the statute cited in the president’s executive order, he believes.

John Banzhaf noted in an interview with WND that Germany’s cabinet last month approved a measure allowing GPS ankle tracking devices for individuals who are suspected of posing a terrorist threat but haven’t been charged or convicted.

The German measure was prompted by the Dec. 19 terror attack on a Berlin Christmas market that killed 12 people and wounded nearly 50 others. The attacker, Anis Amri, had been under surveillance but fell off the radar a few months before the attack.

Banzhaf pointed out the U.S. law cited in the Trump order, 8 USC 1182(f), gives the president the authority to “impose on the entry of aliens any restrictions he may deem to be appropriate.”

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If the federal-court block on the travel ban continues or the Trump administration loses the case, Banzhaf said, “I think they would do well to consider the second part of that article, which permits the president to put any reasonable restrictions on which he wishes.”

It’s the first part of the statute, he said, that gives the president the authority to ban certain travelers.

“It says that he can make an order based upon class of person. And I think any reasonable reading of that doesn’t mean he’s going to differentiate based upon tall people or short people or whether they have long noses or short noses,” Banzhof explained.

“When you say class, you’re talking about ethnicity, you’re talking about religion, you’re talking about country of origin,” he said.

The statute reads:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

“Trump is telling us,” the Georgetown professor said, “that based upon the very weak governmental structure, bordering on chaos, in many of these countries, it is virtually impossible to reasonably vet them, to be able to say beyond any reasonable suspicion these are not, in his words, ‘bad dudes.'”

If you can’t ban all visitors, and it’s too risky to let everyone in, there is the third option, he said, of deciding that “in cases where can’t completely vet, you must wear an ankle tracking monitor.”

An agent could track multiple people in real time and be alerted when they leave specified areas or go to suspicious places, he said.

The criteria for determining who should wear an ankle bracelet could be the same as is used at airports or other ports of entry to determine who should be given secondary screening, said Banzhaf.

Motivated by animus?

More than a dozen states now are challenging President Trump’s revised temporary travel ban, which is scheduled to take effect Thursday.

Hawaii is seeking a temporary restraining order in a case brought on behalf of a Syrian family, and Washington state has been joined by five other states to extend the temporary injunction issued Feb. 4 by federal Judge James Robart in Seattle and upheld by the 9th Circuit Court of Appeals.

Trump’s new order bars issuing visas to travelers from six majority-Muslim countries for 90 days and suspends the entire U.S. refugee program for 120 days. It also caps the total number of refugees admitted this fiscal year at 50,000, instead of 110,000.

Banzhaf believes that at its core, Trump’s travel ban “certainly passes constitutional muster,” though, if he were litigating the case, he would have added a non-Muslim country to the list of Somalia, Iran, Syria, Sudan, Libya and Yemen to ensure victory in court.

He noted a federal judge who ruled on the Trump administration’s initial Jan. 27 order made that point.

“I believe the executive order would be constitutional, but as a good litigator, anytime judges can point to something in my pleadings or my documents and say, ”Well, this gives me a problem,’ I am sure going to try to correct it — provided I can do so easily — which is what the Trump administration could have done here,” Banzhaf said.

Hawaii contends Trump’s order treats Muslims in the state as “second class” citizens, in violation of the U.S. Constitution and the Immigration and Nationality Act. The state’s petition cites comments by Trump and his surrogates during the campaign to argue that the temporary ban is motivated by animus toward Muslims, violating constitutional guarantees of religious freedom and equal protection of the laws.

Richard Primus, professor of law at the University of Michigan Law School, charged the order is “animated by prejudice, and pretty much everyone knows it.”

Banzhaf insisted, however, that that argument could be made if the issue were people who are inside the United States; but under the plenary doctrine of constitutional law, people merely seeking to enter the U.S. are not protected.

“If you are outside the country, have no connection with our country, and are seeking simply to get into our country, most of the constitutional protections do not apply,” he said.

The TSA, for example, has required people who come from certain countries, mostly Muslim, to go through additional screening.

“Equal protection, discrimination based on religion simply doesn’t apply to people in foreign countries with no previous contact and simply want to come,” the professor said.

He pointed out that during the Ebola crisis, the U.S. restricted people traveling from certain African nations.

By the logic of states arguing Trump is motivated by animus, that would be discrimination based on race, he said.

“Nobody fussed or screamed or said it was unconscionable or unfair,” Banzhaf said.

Banzhaf also said he doubts that states have standing in the cases against the Trump ban, because courts are reluctant even to allow states to raise standing for their own people, let alone someone in Yemen who would like to come to the U.S.

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