OPINION: Travel ban executive orders and circuit courts locked in fruitless gridlock

Over the past year, President Donald Trump and the federal circuit courts have been stuck in an unproductive cycle of signing executive orders, blocking the order and having the order expire, causing the case to be dismissed.

During the month of October, this cycle continued with Maryland and Hawaii district court judges blocking Trump’s third travel ban on Oct. 17. Meanwhile, the Supreme Court dismissed the case on the previous two travel bans on Oct. 24, based on the fact that the bans were no longer being implemented and, thus, no longer had standing for appeal. The most recent executive order is pending an appeal before the Maryland Circuit Court and needs to go back before the Supreme Court in order to end this ridiculous cycle.

The Hawaii and Maryland judges’ decisions to block Trump’s travel ban centered around statements made by Trump during the 2016 presidential campaign where he proposed blocking Muslims from entering the United States. In the opinion issued by the Hawaii district court judge, he specifically notes that it is because Trump never rescinded his comments calling for a Muslim ban that individuals appealing the law have the grounds to do so.

The Hawaii judge’s decision takes note of the fact that, in the executive order, an explanation is given for why residents should be banned from each of the countries listed. These reasons include a large terrorist organization presence in the country, state sponsorship of terrorism and poor ID-management on the part of the nation’s government.

The executive order notes that these conclusions and recommendations on what countries to include in the ban were formed based on the analyses done by the Department of Homeland Security. However, the district court judges determined, without having had access to the full information from the Homeland Security analysis, that there was insufficient evidence of a threat to United States’ interests.

Both the district court judges focused their opinions on the fact that an individual’s nationality does not make them an increased threat to United States security, which is true. They also pointed out that the individual applying for a visa has the burden of proving that they are eligible for that visa. However, that system does not work in some countries due to poor record keeping, which is part of the reason for concern.

The executive order explicitly notes the concern with regards to record keeping on the part of some foreign governments and their failure to maintain reliable records on citizens’ IDs and information. Because of this, it is effectively impossible for the United States’ Department of State to properly vet these individuals to determine that they are not a threat when it is entirely possible that their information has been doctored.

“The military tells us they can expect, not a reduction after ISIS is defeated, but, maybe even an increase in attacks,” Attorney General Jeff Sessions said during a Senate Judiciary Committee hearing on Oct. 17. “The President’s executive order is an important step to ensuring that we know who is coming into our country. It is a lawful, necessary order that we are proud to defend.”

The Supreme Court needs to take on this case in order to eliminate the rationale that a candidate’s racists statements during the election can somehow prohibit them from taking what would otherwise be a constitutional act. The simple fact is that the travel ban does not constitute a Muslim ban, especially since the most recent list includes Venezuela and North Korea, two countries who lack a large Muslim population.

Back in June, the Supreme Court reinstated the core components of the original travel ban while giving exceptions for those with ties to the United States. They cited the government’s compelling need to ensure the nation’s security as sufficient justification for the reinstatement of the ban pending a future hearing.

While the court dismissed that case due to the original travel ban no longer being enacted, a ruling needs to be issued on the present one. Otherwise, the cycle of Trump issuing an executive order only to have it blocked by activist district court justices is only going to continue wasting everyone’s time.