Travel Ban 4.0 May Come From Congress

One year ago, a dispute broke out over the legality of a travel ban issued by White House. Now, the Supreme Court is set to consider one of two challenges to the most recent iteration of that ban — dubbed Travel Ban 3.0 — in what promises to be a historic decision regarding presidential power. Worried the decision may not go their way, some lawmakers are already stealthily drafting legislation to keep the courts out of future prohibitions on immigrant groups — specifically, in the Securing America’s Future Act. This must be stopped.

On January 27, 2017 President Donald Trump issued an executive order banning entry of citizens from Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen for 90 days, and indefinitely halting the arrival of refugees from Syria. The Executive Order was met with nationwide protest, and a number of federal judges blocked parts of it. Not to be deterred, President Trump issued a second travel ban on March 6, 2017, and, on September 24th, a third iteration of the ban, which was subject to similar injunctions and later stayed pending a Supreme Court decision to settle the matter.

Either because many legal scholars anticipate a favorable decision for the opponents of the travel ban or because lawmakers truly believe in the executive’s authority to ban entire classes of people, a new vehicle to sanction that authority has emerged.

Earlier this year, Bob Goodlatte (R-VA), Michael McCaul (R-TX), Raúl Labrador (R-ID), and Martha McSally (R-AZ) introduced the Securing America’s Future Act (H.R. 4760). The bill tackles changes to legal immigration, agricultural reform, visa security, interior and exterior enforcement, asylum reform, and the “Dreamer” population.

Applauded by anti-immigrant groups such as NumbersUSA, the legislation, which would take effect immediately, amends the Homeland Security Act of 2002 to give exclusive authority to the Secretary of Homeland Security (or a designee) to refuse or revoke any visa to any alien or class of aliens if it is determined to be in the security or foreign policy interests of the United States (Title III, Sec. 3105 — Visa Refusal and Revocation).

In order to avoid the messiness of legal challenges, the legislation further precludes all courts from reviewing any decision by the DHS Secretary to refuse or revoke a visa, or from hearing any claim arising from, or any challenge to, such a refusal or revocation.

Just like that, the 77 lawmakers co-sponsoring the bill manage to give carte-blanche to DHS to unilaterally refuse or revoke any visas, at any time, for any reason. Our Constitution sets down numerous checks on executive authority, yet these lawmakers intend to give unreviewable authority to unspecified bureaucrats.

Not only does this act raise significant policy and legal concerns, it flies in the face of the anti-regulatory Republican message. Mere weeks before endorsing the bill, Rep. Mark Meadows (R-NC) applauded a speech by President Trump condemning the unjust power of the regulatory state. “Unchecked regulation undermines our freedom,” Trump said. Yet now, Rep. Meadows wants to afford the head of an executive agency unchecked authority over immigration and visa policy. Specifically, the law would allow DHS to, “issue regulations, establish policy, and administer and enforce the provisions of the Immigration and Nationality Act and all other immigration or nationality laws relating to … the granting and refusal of a visa,” while removing this authority from the oversight of the courts.

As DACA negotiations continue, advocates must be on the look-out for attempts to legislate provisions that would put immigrant bans outside the purview of the courts. This isn’t the only extraordinary and insidious policy proposal in the Securing America’s Future Act, but this one should stop lawmakers in their tracks.

Kristie De Peña is the Director of Immigration and Senior Counsel with the Niskanen Center, a libertarian think tank and advocacy organization that promotes pragmatic immigration policies. She earned her J.D. from the University of Iowa College of Law, and an LL.M. in National Security and Foreign Policy from George Washington University School of Law.