Houston, TX (Law Firm Newswire) May 1, 2017 - President Trump’s second travel ban, on face value, is not unconstitutional. However, the ban does encourage discrimination.
Two federal courts, one in Maryland and the other in Hawaii halted President Trump’s second executive order implementing the travel ban. The second travel ban removed exclusions in the first executive order originally applicable to permanent residents and U.S. citizens from seven Muslim majority countries and also stopped processing refugees from those countries.
“The second travel ban was not, on its face, unconstitutional,” indicated Houston immigration attorney Annie Banerjee. “However, it has a significant impact on people practicing the Muslim faith, which clearly may be construed as unconstitutional.” To that end, any other higher court examining the second travel ban, will find themselves weighing whether or not Americans are safer with the travel ban in place, versus whether or not discrimination towards those of Muslim faith is in the legitimate interest of the country.
At the core of the challenges against the travel ban is the allegation that the executive order is an attempt by President Trump to fulfill campaign promises to ban Muslims; a promise calling for “a complete and total shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.” Arguably, the questionable travel ban may be construed as encouraging discrimination toward a certain religion. “It may also be argued that there has not been any recent incidents of terrorists attempting to enter the United States from the seven countries listed,” added Banerjee.
The Hawaii ruling put the travel ban temporarily on hold, a setback Trump met with a promise to appeal and to proceed to the Supreme Court if necessary. He also added he would like to revert to the first travel ban that contained stronger travel measures. Government attorneys argued the second travel ban was substantially revised and included the removal of an exemption for religious minorities from affected countries.
Hawaii's appeal arose as a result of a ruling handed down by a federal judge in Maryland, blocking enforcement of a key portion of the revised travel ban from going into effect. In Maryland, attorneys said that the second ban still discriminates against Muslims. The second version of the ban applies only to new visas from the Muslim majority countries of Yemen, Iran, Somalia, Syria, Libya and Sudan as well as temporarily shuts down the refugee program. It does not apply to travelers already in possession of a visa but it is still being presented as a ban meant to better the national security of the United States.
The U.S. 4th Circuit Court of Appeals is considering hearing arguments on the revised executive order and may assent to fast tracking the appeals process. The Trump administration and the International Refugee Assistance Program challenging the order have been instructed to file a brief outlining “their position on the appropriateness of initial en banc review in this case.” En banc refers to a session where a case is heard before the entire bench and not by a panel of judges. If an en banc hearing were granted all 15 judges on the 4th Circuit would hear arguments in the case.
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