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Status of the Muslim Ban: the new regulations are inoffensive enough for the Supreme Court

The Trump administration's Muslim ban burst on the scene with a lot of fanfare and chaos at the airports, and a display of almost comical incompetence by the new president. The initial ban was sloppily drafted by White House officials eager to make good on the Muslim ban promise made by the new leader. The Executive Order was shut down by the courts as an unconstitutional infringement on the constitutional prohibition against the establishment of a religion by the government. Apparently, the White House embarrassingly failed to check with those who had some knowledge and even a bit of competence in immigration policy and constitutional law.

The administration redrafted the executive order and issued a second Executive Order restricting travel only to be shut down again by the courts. The legal challenges made their way to the Supreme Court last summer. See the timeline of Muslim ban challenges. The high court ruled on the pending Restraining orders by lower courts by permitting some of the restrictions on travel and disallowing others until it could hear the entire case in October. In effect, the decision was to not decide the case because the travel restriction proposed by the administration would end in October anyway and the matter would be moot.

In September, the Administration released its final version of the travel restrictions. These rules effectively nullified the principal complaint about the travel ban, that it was directed at one religion--Islam. By including non-Muslim countries in the final version of the travel restrictions, the administration eliminated the First Amendment basis for the challenge to the restrictions. It is a sanitized and window dressed Muslim ban.

The rationale for the travel restrictions centered around the idea that the U.S. Department of State should do a better job of screening people who come to this country who may be terrorists. The fact is that the terrorists that have most harmed the U.S. were either U.S. citizens or from countries that are not included in the ban. Even the non-Muslim nations now included in the ban are countries that have no history of exporting terror of any kind.

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