Third on a Match: New Travel Ban Raises The Stakes For Challengers

downloadBelow is my column in The Hill Newspaper on the termination of the second travel ban and issuance of the new order by the Trump Administration.  As discussed in the column, the Supreme Court went ahead and removed the immigration cases from the schedule for oral argument while agreeing with the Administration to order briefings on whether the cases are now moot.  It is hard to see how the cases are not moot in whole or substantial part. The Court tends to take off ramps to avoid constitutional decisions, particularly in the area of the separation of powers.  It will hard not to take this obvious off ramp.

Soldiers often say it is unlucky to be “third on a match.” It was common superstition that first arose in the Crimean War and later became popular in World War I. The theory was that it often took a sniper time to properly sight a target and, for that reason, the third soldier to take a light off a match was often the one shot. With the issuance of a third travel order by the Trump administration, the challengers may find themselves in the same precarious position of being a match short and out of time. Advocates have already declared the new order as the same “Muslim ban” and promised a third legal round of challenges.

However, with each successive travel order, the chances of the challengers have diminished and the aim of the administration has dramatically improved. They may find that, in both war and law, third on a match is truly bad luck. On Oct. 10, the Supreme Court is scheduled to hear arguments on the second travel ban. It is hard to see how much of the case survived after Sept. 24, the date that the travel ban expired, given this new and different order. The court will now have to decide how to respond to an order with a new scope and new procedures. The Justice Department has asked for such briefing on whether the case is now moot.

From the start, it appears that the administration was always planning to take the shot on the third round before the court. The administration conspicuously declined to ask for a hearing back in June and instead accepted an oral argument date two weeks after the 90-day expiration of the second order. Nevertheless, the Supreme Court ruled initially, if temporarily, against the lower court orders. It lifted the injunctions imposed by the lower courts and allowed the travel order to be implemented, with an exemption of those with “any bona fide relationship with a person or entity in the United States.” When the 9th Circuit later tried to again bar aspects of the second order impacting grandparents and refugee organizations, the Supreme Court quickly lifted that injunction as well.

That was the second light. Various advocates are already reaching for the third light. Johnathan Smith, legal director of the advocacy group Muslim Advocates, dismissed the new order as the “same Muslim ban” and insisted that the order makes only “cosmetic adjustments to the Muslim ban.” He predicted that the administration has “failed again.” However, that only overestimates the chances of the challengers before the court on the second order but ignores the obvious changes in the third order.

The record

The most damaging arguments made in the first two rounds of litigation were based on President Trump’s intemperate campaign statements and later presidential comments on banning Muslims. Some of us questioned the heavy reliance on such statements as constitutional matter. Indeed, in a rare published dissent to the denial of a rehearing, five appellate judges on the 9th Circuit strongly rejected the challenge. Moreover, each new generation of the order made these statements less and less material.

While Trump can certainly undermine his lawyers with new tweets and comments, the challengers may find that these statements have the feel of Golden Oldies with a smaller and smaller judicial audience. Moreover, the administration has long argued that the first and second orders were not Muslim bans, and that case is even stronger on the third round. Now it has dropped two Muslim countries, Iraq and Sudan, while adding Chad based on changed circumstances. It also added North Korea and Venezuela.

More importantly, the record put forward by the new administration in January was thin. This record is ample. The Homeland Security Department spent months working to develop a new security baseline and studied the need for such new requirements as electronic passports with biometric information as well as integration of criminal records. Every country, not just those listed in the original order, was ordered to meet these benchmarks in 50 days and virtually all did so, according to the administration.

The scope

The administration has now had months to study vetting procedures and problems in various countries. Multiple agencies reached consensus on the limitations placed on the new list of eight countries. Sudan was found to have responded and improved their vetting and record procedures. The other countries face different restrictions tailored to the particular risks found in their procedures. Somalia will face added scrutiny, but its citizens can obtain visas.

Venezuela will have limits placed on those associated with the country’s leadership and their families. Iranian citizens will continue to be ineligible for tourism and business visas, but they will remain eligible for student and cultural exchange visas if they undergo additional scrutiny. Various judges had already expressed reluctance to second-guess the administration on such issues, and that reluctance will likely only be magnified by the new record from the administration.

The procedures

Some of the prior decisions focused on the failure of the administration to properly prepare immigrants and agencies for the change in entry procedures. This order contains restrictions that will be phased in gradually and will not apply to anyone with a current valid visa. The first order failed to exempt visa holders in an astonishing oversight in drafting such a major executive order. More importantly, efforts to force greater integration of criminal and terrorist records are objectively reasonable.

The new technology of biometric identification is already being used in many countries. Courts routinely decline to superimpose their views on such policies and afford agencies like Homeland Security considerable deference on the choices that they make in areas like immigration. This ban is indefinite for the countries as opposed to a 90-day suspension of entry. However, that ban can be lifted if the countries meet the procedures laid down by the order.

Now it is time for the third light, but it is hardly risk free. For immigration advocates, the next round could create lasting and damaging precedent. The administration has an improved position and, in my view, it is likely to hit this target with greater ease and effect. In that sense, the third round could prove as much a charm for the administration as bad luck for the challengers.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley

52 thoughts on “Third on a Match: New Travel Ban Raises The Stakes For Challengers”

  1. Taqiyya: Muslims are allowed to LIE.
    Yarden Mariuma writes: “Taqiyya is an Islamic juridical term whose shifting meaning relates to when a Muslim is allowed, under Sharia law, to lie. A concept whose meaning has varied significantly among Islamic sects, scholars, countries, and political regimes, it nevertheless is one of the key terms used by recent anti-Muslim polemicists.”[15] Islamic scholars claim that taqiyya is only permissible under duress, and that the inflationary use of the term qualifies as “a staple of right-wing Islamophobia in North America” (Mohammad Fadel 2013), or “Taqiyya libel against Muslims”[16] while their critics accuse them of practicing “taqiyya about taqiyya” (Raymond Ibrahim, 2014).[17]-Wikipedia

  2. Ruth to the other 8:
    There’s a hole in your bucket Dear Lizza Dear Lizza..
    There’s a hole in your bucket Dear Lizza a hole.

    Then fix it Dear Ruthie..etc

  3. Edit: It will be hard not to take this route. Or it would be hard.
    The Court cannot be limp.

  4. Subjective, biased and political “interpretation” and “legislation from the bench” are crimes of high office.

    Commingling the definitions of the words “state” and “federal” to impose a bias and an ideology is not simply absurd, subjective and arbitrary but egregious, as one example.

    Congress, here is your constitutional control on the judicial branch.

    Enhance and accelerate it.

    And please use it.

    Article 2, Section 4

    “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

    1. Now all you have to do is find enough left wing socialist fascist traitors to take that step by being stupid enough to put words in the courts collective mouth before they have started deliberation.l Nothing like pissing a fire and wondering how your clothes got charred and sintinking.

  5. We refused to hold Saudi Arabia accountable for the past 16 years as most of the attackers on 9/11 were from there. Travel bans are pointless if we’re doing it to score political points while turning a blind eye to the real causes of terrorism.

    1. The Saudi attackers were the Lee Harvey Oswald “patsies” in the 9/11 scenario.

      The actual “grassy knoll” and rear Daltex building shooters were command detonated “controlled demolition” charges (building 7 fell perfectly in its “footprint” having never been hit by anything).

      The executive action was conducted by the shadow government neocons with alliance from a middle eastern adversary of the Saudis.

        1. Since when does steel structured building collapse when it is hit by large debris or a small fire? Know of any?
          Any where in the world?
          Building 1 & 2 were designed to withstand a 727 impact.
          We have a Fireman’s audio claiming the the leftover fuel from the plane, was burning 2 isolated pockets of fire.
          Here is the audio.

          1. The interior structure I believe was the support structure for the building unlike older buildings. I have heard by somewhat knowledgeable people that the Empire State Building was constructed in a different fashion and would not have gone down if hit in the same fashion. I don’t remember all the details, but the explanation at the time sounded very reasonable.

            1. Allan – near the end of WWII a bomber hit the Empire State Building causing a great deal of damage. However, it wasn’t loaded with aviation fuel at the time.

              1. Paul, The Empire State Building had a strong exterior. The plane with fuel would have pierced it and exploded, but some believe, myself included, it would have remained standing because of the way the structure was built. I actually was flying up to NYC 2 days later, but I decided to stay away because I was concerned with the pollution that was in the air at the time. I was at the WTC the morning of the first bombing buying TKS tickets. I’m glad that we got out early that day and were gone from the building when the bomb exploded. I am in Manhattan a lot and it is always exciting. 🙂

                1. The Empire State building, Chrysler building, etc were all built differently than the WTC, Sears Tower in Chicago (yes, I know it isn’t called that anymore), and etc. If modern skyscrapers were built using the same structural technologies involved in older buildings like the Empire State building, their bases would be several times larger and would cover entire city blocks.

            2. That is correct. The Empire State building is constructed in a vastly different manner than the WTC or other more modern buildings.

              I can’t believe we are having such a ridiculous discussion here. Have you ever seen a plane crash with a near full load of fuel on board? Jet fuel burns hot and harsh.

              When do we get to debate chem trails, reptillians, and the faked moon landings?

              1. “I can’t believe we are having such a ridiculous discussion here.”

                Yet you have involved yourself in this discussion. 😉

          2. It actually burned for hours.

            You fancy Larry Silverstein bid for a 99 year lease on a real estate complex in order to engage in a massive insurance fraud?

          3. An aircraft is not small debris. A full load of jet fuel doesn’t burn in small pockets. Are you aware that building’s like the WTC don’t have the traditional core common in smaller structures? No. You are not. You’re just another weirdo.

            When do we get to debate chem trails, reptillians, and the faked moon landings?

        2. I gotta wonder, if this so-called alliance George believes in were so skiled as to pull off 9/11 how is it they haven’t figured out total world domination yet 🙂

      1. Forgotten clip of Building 7
        Demolition charges going off,
        Before it collapsed into its own footprint.
        Followed by audio of owner Larry Silverstein being interviewed at a later time explaining we made a decision to ‘pull it’.
        Pulled it on the same day of the tragedy. All 3 pulled buildings would have needed a minimum of a few days to set of the pull charges.

        1. All of this was nonsense to begin with and thoroughly debunked 11 years ago. Can you take it somewhere else?

    2. For what are you holding the Saudi government ‘accountable’? Others were Egyptian. Are you going to hold Egypt ‘accountable’ as well? Is some unspecified public official to be held ‘accountable’ for John Walker Lindh and Christopher Boyce and Robert Vesco?

    3. Nice tweet. Doesn’t belong in a discussion group Missing a few things. facts, sorces, sites, cites. objective thinking…. REJCTED.

    4. Betsy, How were the nations chosen to be on the list? They weren’t chosen based upon the past and they weren’t chosen based upon their religion. They were chosen based upon 1) the threat potential and 2) the lack of ability in verifying who they are. You don’t look in the past rather reevaluate the threat and how that threat can be reduced. You can argue that the methodology is wrong, but your present argument holds no water.

      Do you understand or will you will you simply repeat the same ignorant reasoning in the future?

    1. Sit back and watch the fun 27. We can start another stupid conspiracy theory by adding up your numbers and comparing them today’s date. If down hill included underwater topography you are correct they would be blowing bubbles in stead of hot air.

      1. Michael, if I were to crack a code I would start by thinking 6 numbers is a lot to remember so maybe it is a conglomeration of numbers. Without knowing anything about him except likely he is not young he might have used the older 727 plane and combined it with his area code 272 in Pennsylvania =727272. Of course I don’t know where he lives or anything else about him so this off the cuff guess is a very wild guess at best.

      2. The repeating two digit number I use derives from three sources. First, it’s the year my favorite Roman Emperor, Vespasian, commissioned the Coliseum in Rome. One of my favorite spots. Second, it’s the number I wore playing sports. Lastly, it’s a very important number in numerology denoting philanthropy, compassion, idealism, intuition and justice. I aspire to all five. You ma want to read about the number here:

  6. I think we’re getting this whole thing wrong. I don’t see a travel ban as being truly effective. Nor do I think a border wall will stop people from entering the US illegally. Instead, we ought to install turnstiles at the borders and sell tickets for admission. Would be far more effective AND it would pay for itself.

  7. I took note of this quote from Clarion. “Sarsour and CAIR were peddling victimhood status way before Trump was a political commodity. In a media appearance in early 2015, Sarsour claimed Muslim children were being executed in the U.S.”

    That is the same Sarsour who believes in Sharia Law and therefore subjugation of women along with female genital mutilation (a leader of the woman’s march on Washington) . “Executed” children? Maybe rapist murderers, but that is another type of lie this group of people subscribe to.

    1. Don’t know who you are referring to, but I agree CAIR is nothing more than the soft side of Islamist terrorism. The Muslim Brotherhood declaration states its intention to destroy the west from within.

  8. President Trump had the legal right to protect the security of the US. His comments were not part of the legal document and unless unclear or illegal the only thing that really counts is what is between the four corners of the document, not what existed outside the document.

    The President’s tweets have little to do with the legitimacy of such a document especially since they represent headlines, not the news that a longer discussion would provide. The judges went beyond the law and mixed ideology into their decision. If I could I would remove all those judges.

    1. Typical crap from ignorant people. Better get your quotes right and stop quoting five words and then adding your own. You are unable to make any case without lying.


      “A leaked Hillary Clinton email confirms that the Obama administration, with Hillary at the helm, orchestrated a civil war in Syria to benefit Israel.”

      Very dangerous escalation in Syria

      “By now many of you must have heard the news: a Russian Lieutenant-General, Valery Asapov, and two Colonels have been killed in what appears to be a very precisely targeted mortar attack. Just as in the case of the Russian military police unit recently attacked near Deir ez-Zor, the Russians are accusing the Americans of being behind this attack. To make things even worse, the Russians are now also officially accusing the Americans of actively collaborating with ISIS:”

      1. Another 5 word quote that is out of context from a writer that apparently has no reputation to lose.

        Here is a quote that is in context. Instead of lies about Israel. let’s reveal the intentions of the Muslim Brotherhood here in the US with a quote from the Muslim Brotherhood Memorandum released in the Holy Land Trial.

        Take especial note of “destroying the Western civilization from within and “sabotaging” its miserable house”

        “4- Understanding the role of the Muslim Brother in North America:
        The process of settlement is a “Civilization-JihadistProcess” with all the word means. The Ikhwan must understand that their work in America is a kind of grand Jihad in eliminating and destroying the Western civilization from within and “sabotaging” its miserable house by their hands and the hands of the believers so that it is eliminated and God’s religion is made victorious over all other religions. Without this level of understanding, we are not up to this challenge and have not prepared ourselves for Jihad yet. It is a Muslim’s destiny to perform Jihad and work wherever he is and wherever he lands until the final hour comes, and there is no escape from that destiny except for those who chose to slack. But, would the slackers and the Mujahedeen be equal. ”

        The entire Muslim Brotherhood Memorandum can be seen in Arabic and English here

        It should be carefully read by every American.

  9. One should shoot the smokers. A match lighter is a smoker. Suicide is dangerous. Guns are quicker.

  10. A man writes an order based only on HIS analysis and and people question whether his publicly voiced opinions about why he issued it or what it is are irrelevant to determine if the order is constitutionally infirm. Interesting.

    As to this case being moot….it would seem that the issues raised therein are very likely to be repeated over and over again…in fact, right away. SCOTUS should be ashamed for not taking up this matter now and resolving it. Taking off ramps is what they are there for.

    1. It was one of the fastest cases ever to run the gauntlet to the Supreme Court. Now they are trying to put words in their mouths. It will be what it will be but what it won’t be is a garbage pile full of nonesense like before. The whole goal was to get the legal stuff settled and then make up a new immigration program based on something more than eating pineapples.

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