The Trump administration today issued a memorandum amending his travel ban in light of court decisions that have held up, and maybe permanently halted, its implementation. Specifically, Trump’s memorandum delays the implementation of the provisions that the courts have halted:
In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision. To the extent it is necessary, this memorandum should be construed to amend the Executive Order.
President Trump’s executive order was supposed to temporarily limit the issuance of visas to nationals from six countries for 90 days and suspend decisions on refugee applications for 120 days in order to give time for immigration and security officials to plug visa vetting gaps. Many of us thought that Trump would extend this ban indefinitely and expand it to more countries if the courts upheld his first order.
It has now been more than 120 days since Trump’s first executive order, which was supposed to be enough time for his administration to plug the supposed gaps in visa screening. Instead of announcing success at plugging those gaps, unless you count some new potential TSA rules as a success, the administration is pushing off the start date so those 90 and 120‐day clocks do not start ticking until the order goes into effect.
The most charitable explanation for this is that the Trump administration wants to increase the odds that the Supreme Court will take up the case by removing the argument that the travel ban is now moot. However, the administrative ease with which President Trump issued this memorandum also shows that we would always be on the precipice of a permanent or otherwise capricious immigration executive order extended to more countries for dubious reasons over an indefinite period of time. Regardless of the constitutionality of the President’s executive order, the potential for abuse should be obvious to all. Arbitrary visa bans for uncertain periods are no way for the government of a developed nation to run its immigration system.