Within days of taking office in 2017, President Donald Trump implemented a blanket ban on entry from seven Muslim-majority countries. It was met with furious pushback, public outcry, and a string of defeats in court.
This time around, despite signing an initial barrage of executive orders, Trump has not implemented a travel ban. But that doesn’t mean it’s not coming. One of his Day 1 executive orders, experts say, takes the first step toward a new travel ban — one that could be even more extensive than the first time around.
The order lays the groundwork for a future ban by directing Trump’s Cabinet members to report back within 60 days on countries with “deficient” vetting and screening procedures for travelers. It’s not clear exactly what kind of punitive measures citizens of those countries could face. But the order leaves open the possibility of a “partial or full” ban on their entry to the US that could go beyond previous restrictions.
Experts say such an order could potentially be used to deport people who were issued visas in the last four years, not just to block future arrivals; it could also include provisions that could target those people based on their political beliefs, not just their country of origin. The White House did not respond to a request for comment on Trump’s plans.
Trump’s slower approach to implementing a potential travel ban seems geared at avoiding the court losses that saw two versions of the 2017 ban struck down, experts say. This time, Trump is being more cautious about his legal strategy and gathering the kind of evidence he could use as justification for future travel bans, rather than immediately announcing one.
In his first term, Trump announced a ban without specifying why the targeted countries raised national security concerns and did not initially articulate any review process by which the bans could be lifted. That is what doomed the policy in court, said Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School and author of a textbook on immigration law.
“I think that they’ve learned from their mistakes in the first administration, setting things up so that if they want to do a travel ban, it’s fairly likely to be upheld in court,” he said.
What a new travel ban could look like
Trump’s first travel ban, enacted in January 2017, targeted travelers, including green card holders, from seven Muslim-majority countries. That ban was struck down in court for discriminating against Muslims.
The Trump administration then revised the ban twice more, excluding green card holders and adding North Koreans and certain Venezuelan government officials to the list of those banned. That third version was the one that the Supreme Court upheld in 2018 and that remained in place until 2021, when former President Joe Biden rescinded it after taking office.
The framework Trump is laying out in his new executive order seeks to expand on that. Though it does not name any particular countries, experts anticipate that at least Yemen, Somalia, and Sudan, all of which were already hit with travel bans in Trump’s first term, could be targeted since those countries do not share vetting information with the US. It would potentially apply not just to future arrivals from those countries, but also to those who obtained temporary visas in the last four years and do not have permanent status in the US as green card holders or citizens. Trump’s executive order leaves open the possibility that those people already in the US could be deported.
According to César Cuauhtémoc García Hernández, a professor at Ohio State University College of Law and author of several books on US immigration enforcement, including Welcome the Wretched, Trump’s early executive order “appears to be setting the stage for more intense and longer-lasting surveillance of migrants” already in the US, including a provision calling for a report “identifying how many nationals from those countries [with deficient vetting] have entered or have been admitted into the United States on or since January 20, 2021.”
If such nationals are included in a potential ban, that might become the basis for a legal challenge: García Hernández told Vox that “unless migrants leave the country or get convicted for the type of crime that leads to deportation, once admitted into the country migrants are legally permitted to stay as long as they comply with immigration law requirements.”
In addition to its vetting requirement, Trump’s recent executive order also states that the US should not admit travelers who have “hostile attitudes toward US citizens, culture, government, institutions, or founding principles” or who “advocate for, aid, or support designated foreign terrorists and other threats to our national security.”
It’s unclear what that might mean in practice. However, Trump did promise on the campaign trail to impose travel bans on Palestinians from Gaza, as well as what he described as Marxists, socialists, and communists from entering the US. Relatedly, he signed an executive order Wednesday to deport noncitizens who participated in pro-Palestinian protests on college campuses last spring.
“Those who come to enjoy our country must love our country,” Trump said in June, adding, “We’re going to keep foreign, Christian-hating communists, Marxists, and socialists out of America.”
This would potentially introduce a new kind of ideological vetting into the visa application process, which could go beyond screening for criminal or terrorist activity and begin targeting people based on their political beliefs.
That possibility has already raised alarms, Abed Ayoub, national executive director of the American-Arab Anti-Discrimination Committee, an Arab-American advocacy group that has condemned Israel’s war in Gaza, told Vox.
“The language that stands out to us is the language about the ideological exclusion,” Ayoub said, “bringing that practice back where folks who may not be from the banned countries may still get their visas denied or maybe banned from entering the US if it’s deemed their ideology is not aligned with the Trump administration’s or it’s deemed to be un-American.”
The president has broad authority to issue travel bans
Even a much stricter travel ban, however, might well fall within Trump’s authority. Federal law gives Trump significant leeway to implement travel restrictions.
Specifically, Trump’s executive order invokes an authority in the Immigration and Nationality Act of 1952 that allows the president to “suspend the entry” of certain noncitizens or impose any restrictions on their entry that they deem appropriate for as long as their presence is “detrimental to the interests of the United States.”
This is a sweeping authority that has been routinely used by presidents other than Trump. For instance, Biden used it to block noncitizens who were determined to have “enabled corruption” in the Balkan states.
But the authority is not without limitations. It cannot override other aspects of federal immigration law, such as the right to seek asylum once in the US. There is also an unresolved legal debate about whether the authority can be invoked to address purely domestic concerns about the presence of noncitizens, such as costs to taxpayers or high unemployment.
Depending on the exact language of any future travel bans, those could be areas in which immigrant advocates could ground legal challenges. But such challenges may not find success with the conservative majority on this Supreme Court.
“I think that immigrants rights advocates will try to find a friendly court to challenge whatever new travel ban comes out, and they may get an injunction,” Yale-Loehr said. “If the new travel ban is like the provision set forth in this executive order, and like the travel ban that was upheld by the Supreme Court back in 2018, then I would predict that the Supreme Court would also uphold this travel ban.”
