The Allegedly New and Improved Travel Ban: The Good, the Bad and the Ugly

On Monday the Orange Administration released a new Executive Order. We all knew it was coming, for no sooner had courts struck down the original Muslim ban when the White House promised a new and improved version. It was supposed to be signed and released last week, but then something strange happened.

In his first joint-address to Congress, the Lint-Covered-Cheeto President surprised everyone by acting like a gentleman. There was no blustering, there was just a man-child giving a speech. Reporters hailed his behavior as being truly “presidential” and the White House opted not to ruin the wave of good faith by releasing the new ban immediately afterward.

No matter what the new travel ban says, it will never outshine the atrocities committed in the first ban’s name. It will never outshine the baby who was denied entry for life-saving surgery (a lawmaker intervened on the child’s behalf when the story leaked so she was saved in the end), or the child separated from his mother for hours, or the old lady who was denied a wheelchair under the enforcement of the first Executive Order. It will never undo the widespread outrage from ordinary citizens and the legal community.

Now it’s time to look at the new Executive Order.

This order replaces the previous one and provides something the first order was sorely lacking: clarifications.

The first Executive Order was so vague no one seemed to know how to enforce it. As a result, people in positions to abuse it did and people with valid documents to enter the US from permanent residents to workers to famous authors and ex diplomats with legit visas were denied or delayed.

The new Executive Order provides a list of people deemed exceptions to its travel restrictions. Among the exceptions are lawful permanent residents, foreign nationals with valid visas or other documents allowing them to legally enter the US, people with dual citizenship, and those on diplomatic visas. Also exempt are foreign business people and workers, foreign nationals granted asylum or refugee status, children needing urgent medical care, and people legally admitted to the US to stay with family.

The new Order also does something the other did not: it condemned Islamophobia.

Unfortunately, the new Order does it in the most petulant way possible by defending the previous Executive Order with a none-too-subtle “we didn’t mean it that way!” response to the displays of Islamaphobia that had ensued.

Section 1 of the new order says:

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities — whoever they are and wherever they reside — to avail themselves of the USRAP in light of their particular challenges and circumstances.

This petulant tone is consistent throughout the beginning of the new Executive Order as section 1 is full of justifications and excuses for the first ban.

On the bright side, it also includes a subtle acknowledgment that the White House would never succeed in the courts had they continued to try and enforce the first Executive Order. The provision that replaces the first order with the current one says that it is “in order to avoid spending additional time pursuing litigation”.

People generally back out of legal disputes to due amicable resolutions, lack of funds, or the fact that they know they can’t win. The former two do not apply here.

Then there’s the list of countries banned.

One would hope that a new improved travel ban would include limitations on some of the countries that actually produce terrorists. Those states widely acknowledged as such include Saudi Arabia, Egypt, the UAE, Lebanon, Turkey, and Kuwait. Sadly, none of these countries are on the list of limited countries as the new Order maintains limitations on Syria, Iraq, Iran, Yemen, Libya, and Somalia from the previous version.

However, this new Order tries to back up this list with facts cherry-picked in part from the Department of State’s Country Reports on Terrorism 2015 (June 2016). The Order does not state where the rest of its justifications come from.

It maintains the discretion of the Secretaries of State and Homeland Security to make exceptions to the ban and like the previous Order, gives them extra responsibilities. The Order requires them with the Director of National Intelligence to review and identify countries from which more information is needed about their people before they are admitted to the US. Once they make the list, they have to ask the countries for information and if they don’t get it in a certain amount of time, the country’s people won’t be admitted to the US.

The new Executive Order was an opportunity for the White House to redeem itself. They could have limited nationals from countries that actually produce a lot of terrorists. They didn’t. They could have used actual facts to back their rules and claims, but they didn’t.

The White House did however do one very important thing which to specify who the ban does not apply to, leaving less room for racists and xenophobes with rubber gloves and metal detectors to arbitrarily bar or detain people they don’t like. In that sense, this new order is new and improved.

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