With travel ban 2.0, Trump learns from missteps

Politico

19 hours ago

When President Donald Trump abruptly unleashed his ban on people coming from Muslim-majority countries in 2017, chaos erupted at U.S. airports. Protests broke out in major cities across the country.
Legal challenges stymied the administration, which ultimately had to slim down its order to pass constitutional muster.
This time, as Trump leveled new restrictions against 19 nations, the reaction was mostly muted and the legal justification appears more deliberate.
It's the nature of the do-over presidency, which has provided Trump with a unique opportunity to build on his first term. And no policy better captures the way in which Trump is demonstrating he's learned from past mistakes or benefitting from a Democratic party less inclined to fight over border security quite like his travel ban 2.0.
'The first version of those travel restrictions were not upheld because the court wanted to see 'what's your methodology, what's the criteria in which you're making these national security decisions?' said Chad Wolf, acting DHS secretary during the president's first term. 'And then once we went back and further validated it and showed the court, they affirmed it. So I definitely think that they built on that, and then probably expanded it as well.'
Trump has used his first five months in office to propose a host of immigration-related ideas that he batted around during his first term but ultimately did not pursue, including an attempt to end birthright citizenship and a plan to revoke Chinese student visas. His team has also taken on an aggressive legal strategy, an effort designed to expand the president's power over the immigration system and implement policy changes more difficult for future presidents to unravel. And Trump released dozens of immigration executive orders in his first week in office, many that directed his agencies to begin exploring the sweeping restrictions he promised on the campaign trail — a torrent of action that wouldn't have been possible without the coordination across the president's team, MAGA allies and conservative think tanks that spent the last four years planning a robust policy agenda.
To be sure, lawsuits over the new travel ban are in the works. Immigration advocates and some legal experts say the new ban, while perhaps better planned than the original version, is nonetheless unconstitutional.
'The new ban is being promulgated in a context in which President Trump has shown a defiance of due process and disregard for judicial decisions that exceeds anything in his first term,' said Jonathan Hafetz, a law professor at Seton Hall. 'This will also likely factor in how courts evaluate the new travel ban, and could make them more skeptical of the administration's claims but also more wary of directly confronting the administration.'
And more broadly, the president's immigration agenda has faced several setbacks, adverse legal rulings and a haphazard approach that has often undermined the administration's case in court. Judges have said immigrants have been wrongly deported — without due process — and have blocked Trump's use of the Alien Enemies Act, a 1798 law that the White House relied upon for authority to deport more than 100 accused of gang membership to an El Salvadoran prison. And his hurried deportations tactics have resulted in at least four men being improperly deported in violation of court orders. The administration was forced to bring one of them back to the U.S. in recent days.
The White House has also faced steep hurdles in other aspects of its immigration agenda. Judges ruled that his executive order aimed at ending birthright citizenship was flagrantly unconstitutional, and the policy faced skepticism from the Supreme Court last month.
But when it comes to his new travel ban, legal experts on both sides of the aisle say the president is likely on stronger footing should he face challenges.
'Under Trump 2.0 there's been an aspect of doing that legwork in advance, so that it would fall under those parameters,' said Morgan Bailey, a partner at Mayer Brown and a former senior official at DHS under the Biden and Trump administrations. 'There may be some challenges. At the same time, having the Supreme Court decision from Trump 1.0 could put this administration in a really strong position.'
Trump's team has been refining his latest travel ban for months, marking a departure from his slapdash approach in 2017. The president on Wednesday said the State Department considered factors such as terrorist activity, visa security cooperation, a country's ability to verify travelers' identities, record keeping of nationals' criminal histories, as well as the rate of illegal visa overstays. The proclamation also broke down the government's reasoning for each country's selection, as well as their visa overstay rates.
'Campaigning is a lot about policy and planning, and governing is about the now and reacting, so this has been a true mix' said Matthew Bartlett, a GOP strategist and former Trump administration appointee. 'Granted, Trump take two has been arguably the largest runway any president has ever had in terms of preparing for their second term. So I think you're seeing more of the granular and nuanced implementation around some of these policies.'
Trump's 2017 restrictions shocked the nation, and legal setbacks forced the administration to alter the policy twice before the Supreme Court ultimately upheld a version the following year, affirming the president's powers over matters of national security. The final policy implemented a range of travel restrictions for nationals of eight countries — Syria, Libya, Yemen, Somalia, North Korea, Chad and Venezuela. Chad was later removed from the list.
And almost immediately after that first order was announced, thousands of protesters marched in cities across the country, while attorneys from major law firms, nonprofits and immigrant rights groups ran to airports to help those detained. There was widespread Democratic outcry in Washington and beyond, and the so-called 'Muslim ban' emerged as a major issue in the 2020 Democratic Primary — with then-President Joe Biden reversing the policy on his first day in the White House.
White House spokesperson Abigail Jackson said Democrats have abandoned claims that Trump's first-term policy was a 'Muslim ban' and 'their performative protests,' adding that the president is 'keeping his promises to put America first.'
This executive order has also been met with far less outrage, in part, because of the administration's effort to flood the zone and keep their opponents off balance.
'There's just so many attacks coming from the Trump administration on all fronts,' said Kerri Talbot, co-director of the Immigration Hub, predicting that when the new order takes effect on Monday, there will be coordinated demonstrations.
But the more methodical way in which this ban on travel was issued may give it greater staying power. The 2017 ban applied to U.S. citizens traveling from the nations on Trump's original list and because it went into effect immediately, it affected people on planes flying back into the country. The ban issued late Wednesday does not apply to those with legal status in the U.S., and includes exemptions for existing visa holders, lawful permanent residents and some others.
While the political pushback may be scarce, Trump wasn't the only one who had extra time to prepare for his second term. Immigration groups and legal organizations have analyzed Trump's proposals, drafted legal briefs, coordinated messaging and organized aid for immigrants and asylum seekers — preparation that has set up a series of contentious court battles.
Trump allies are prepared for the possibility that travel ban 2.0 could face challenges in the courts, though they're much more confident given the 2018 SCOTUS ruling.
'I have no doubt that they believe that you can get some lower court judge to issue an injunction where they claim that somehow this order is different from the prior order,' said Hans Von Spakovsky, a senior legal and judicial studies fellow at the conservative Heritage Foundation. 'But they will lose.'
Brakkton Booker and Kyle Cheney contributed to this report.