How the travel ban resurrects national origin quotas Congress sought to end

The U.S. Supreme Court will hear arguments on President Trump’s travel ban 3.0 on April 25. Like the first two versions, the current travel ban recalls an era of overt bias in immigration that Congress ended in 1965. On March 30, we will file an amicus curiae (“friend of the court”) brief in Hawaii v. Trump (along with WilmerHale) that frames the travel ban as an effort to resurrect the national origin quotas that the 1965 Congress discarded.

Our brief narrates the history of the Immigration and Nationality Act, a statute that has been compared second in complexity to the United States tax code and contains Congress’s vision for who should be admitted into the United States, the reasons a person may be excludable or deportable from the United States, and the terms under which a person may seek a waiver or reprieve from deportation. While much of the attention in the travel ban cases have focused on the ban’s relationship to the Establishment Clause of the First Amendment, our brief shows the clash between the travel ban and Congress’s framework.

{mosads}Until 1965, Congress had allowed only 2,000 visas each year for Asians who wished to settle in the United States. Many presidents—Truman, Eisenhower, Kennedy, and Lyndon B. Johnson—had warned Congress that the quota system was unfair, inefficient, and harmful to U.S. foreign policy. In 1965, Congress heeded to the presidents’ calls. The landmark 1965 amendments to the Immigration and Nationality Act abolished national origin quotas and helped American families by reuniting them with loved ones abroad. To avoid a revival of the past, Congress included a bar on discrimination based on national origin and other factors. Trump’s travel ban amounts to a de facto national origin quota that Congress tried to read out of American law forever.

While the administration has touted the national security benefits of the travel ban, those benefits are more rhetorical than real. In reality, Congress set up a detailed framework to ensure that immigrants to this country did not intend to do harm once they arrived. Trained consular officers from the State Department make those decisions after interviewing each applicant and reviewing all relevant information with the help of other federal agencies, including the Department of Homeland Security. While Trump demanded “extreme vetting,” rigorous review has been a hallmark of consular decisions for decades. The travel ban ignores the elaborate safeguards that Congress mandated years ago. Its exercise of executive power exceeds Congress’s intent.

Moreover, the travel ban is a dangerous distraction. For example, while the ban claimed that listed countries such as Somalia lacked electronic passports that promote reliable identification of immigrants, the conservative Cato Institute has shown that Somalia actually has electronic passports, while many unlisted countries do not. Iran and other listed countries also track lost or stolen passports—a potent tool for terrorists—while over a hundred unlisted countries fail this test.

Until and unless the Supreme Court renders a different decision in June, the travel ban remains in full effect because of twin orders issued by the Supreme Court reinstating the entirety of the ban until a final decision is made by the Court. To date, the ban has had a profound impact on individuals and families throughout the world, many with United States citizen family members and all with a legal basis for admission under the immigration statute. While the travel ban includes a process for those covered to request for a waiver in the case of “undue hardship” and other factors, the reality on the ground is that thousands have been denied visas and often without consideration of a waiver. As detailed in our brief, fewer than 2 percent of visas applicants from the banned countries have received a waiver, a result that has left families separated and in limbo about the future. When the justices hear arguments in a few short weeks, we hope the statutory arguments are successful and ultimately provide some relief to the thousands of people hurt by this unlawful ban.

In 1965, Congress got it right when it abolished national origin quotas in immigration and prioritized family unity. The travel ban tries to undo Congress’s handiwork. We hope our brief highlights the travel ban’s corruption of Congress’s vision.

Peter Margulies is Professor of Law at Roger Williams University School of Law; Shoba Sivaprasad Wadhia is Samuel Weiss Faculty Scholar and Clinical Professor of Law at Penn State Law – University Park.