The Trump Administration has said on a number of occasions that its Muslim Ban (I know that they don’t call it that but that is how it started out and whether it is in fact such a ban will be decided by the courts.) was justified by Congress’ enactment in 2015 of similar restrictions.[H.R. 158, The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015] I believe that the comparison and attempted justification of the current ban by using the 2015 enactment is not justified because the earlier action was a change in visa issuing procedures, not a ban.
It is worth noting at the outset that members of Congress are always in the position of having to to show their constituents that they are doing something even if it is ineffective. It’s like the adage that if you only have a hammer in your toolbox every problem will look like it’s a nail. Congress often does things that may be contrary to law and it is the job of the Executive Branch to try to moderate the application of the law to make it consistent with the Constitution. Failing that the judicial branch exists to keep them all honest. The second applies to the legislation enacted in 2015 that the Trump Administration claims to give them license to impose a ban based on religion and nationality. The 2015 legislation was a response to a concern that persons who had traveled through certain countries could have been radicalized and should be subjected to additional screening. It focused on these people rightly or wrongly because there were millions of people from a selected countries who were subjected to lesser screening. The countries that fall within this group are most of the European nations, Japan, Singapore and South Korea, Taiwan, Australia and New Zealand. The only country from Latin America under the program is Chile. There are many requirements for getting on this list and they include extensive data sharing and there it must be an strong record of its nationals who come to the U.S. and maintain their proper nonimmmigrant status. to them. This program was first established in 1986 and later made permanent is known as the “Visa Waiver Program” (VWP).
What Congress did in the 2015 amendments was to separate from the Visa Waiver Program, people who had traveled through the suspect countries or who were dual nationals with one of them. It effectively stated that these people had to be screened just like the 10.8 million other tourists and visitors for business who applied for visas in 2016. (The number of nonimmigrant admissions under the VWP last year was approximately 21 million, and the number admitted under regularly issued tourist visas was approximately 55 million.) [See Immigration Statistics, Nonimmigrant Admissions to the U.S.] The 2015 amendments did not, as was done in the Executive Order, ban the admission of any group of people. It enabled the Department of State which issues visas and the Department of Homeland Security which inspects arriving non-citizens to subject these people to an additional level scrutiny comparable to that imposed on most nonimmigrants. So the procedure did not expand our already broad exclusion laws nor did it create either a nationality or religious ban.
Let’s be clear – even people coming from a visa waiver country are not assured of admission. In fact, they can be easily turned back on arrival and put on the next plane with barely an explanation. Unlike other nonimmigrants admitted to the US they have effectively waived their rights except to being considered for asylum protection. All other nonimmigrants, that is persons from anywhere else in the world who are issued a visa are subject to multiple checks, first when they apply for their visa overseas and then when they arrive.
One last point of fact which in my view highlights how the Trump Administration has mischaracterized and overblown the importance of the amendments is that throughout the period of conflicts in the region and with heightened concerns about terrorism, the Department of Homeland Security have granted and extended Temporary Protected Status (TPS), to nationals of Somalia, Sudan, Syria and South Sudan living in the U.S. (See List of Temporary Protected Status grants.) A grant of TPS provides these people with protections from deportation or being placed in removal proceedings and gives them formal work authorization in incremental one year periods. This is hardly a sign that the U.S. has ever considered these people as a group to be a security threat requiring their categorical denial of admission.