Presidential Proclamations: Travel Ban 3.0

The following proclamations do not contain any new initiatives or policy decisions.

• Proclamation 9650: Child Health Day, 2017, issued September 29, 2017 as required by law.
• Proclamation 9649: National Domestic Violence Awareness Month, 2017, issued September 29, 2017.
• Proclamation 9648, National Cybersecurity Awareness Month, 2017, issued September 29, 2017.
• Proclamation 9647, National Breast Cancer Awareness Month, 2017, issued September 29, 2017.
• Proclamation 9646, National Disability Employment Awareness Month, 2017, issued September 28, 2017 as required by law.

Proclamation 9645: Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats

This Proclamation was issued on September 24, 2017.  Why this is a Proclamation and not an Executive Order, has to do with wording in EO 13780, but it has a preamble and 9 sections much like many EO's and the rest of this post is devoted to it.  This is effectively Travel Ban 3.0.

Preamble

This section references EO 13780 wherein an analysis of risks of people from different countries was requested.  Based on the information received, the President has issued this proclamation to put in additional restrictions, screening and vetting on citizens of certain selected countries.

Section 1

This section starts by discussing the report requested in EO 13780 and provided to the President on July 9, 2017.  The report determined that 7 countries should have restrictions and limitations imposed: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.  It also mentions that Iraq was considered to have failed the tests, but was given a pass due to political exigencies.  It distinguishes between immigrant and non-immigrant visas where appropriate.  Finally is also adds Somalia to the list of countries that deserve restrictions or limitations on the basis of a September report to the President.

Section 2

This section goes through country by country as to what the restrictions are.  There is some merit to the arguments made.  The variance in the decisions show that some thought went into them and there has been learning from past mistakes.

Section 3

This section provides specific conditions and exceptions to the application of the entry restrictions to the citizens of the countries listed in Section 2.  It also provides for a fairly detailed process for seeking and obtaining waivers to the entry restrictions on a case by case basis.  In my opinion, the circumstances listed that might be appropriate for waivers are actual cases that were brought up during the time period when the first travel ban was implemented.  So in reality, if a person can make a strong enough case that not letting them go to the US would make the US government, and specifically the current administration, look bad enough in the media, they can probably get a waiver.

Section 4

This section asks for a report every 180 days to advise whether any adjustments to the proclamation need to be made.  It directs the heads of the departments to engage with the countries listed to improve on the deficiencies that lead to their placement on the list.  Any actions (that are non-classified) should be included in the 180 day reports.  Finally, it does state that if certain cabinet members determine that a change needs to be made to the list, they will take it to the President immediately.

Section 5

This section calls for even  more reports.  Subsection (b) is poorly worded in that it is not at all clear to what the "annually thereafter" applies to.  At face value, it appears to be the second report issued at 270 days after the proclamation, but that does not seem right to me.

Section 6

This section deals with enforcement.  This provides some guidance to CBP on how to administer the requirements of the Proclamation.

Section 7

This section defines when this Proclamation comes into force: September 24, 2017 for some parts and October 18, 2017 for the rest.

Section 8

This section includes an explicit severability clause because it was clear that there would be court challenges to this Proclamation.

Section 9

This section includes the usual legal fine print to assure the constitutionality of this executive branch document.

My commentary

On the face of it, the proclamation seems defensible in court (but that may just be because of comparison to EO's 13769 and 13780).  The original charges against the previous EO's was that they were religiously charged, and clearly, given what has transpired, they were at least badly enough written so as to give the appearance of discrimination based on religion.  For what it is worth, this Proclamation does take measures to make the US safer.  The real question is whether we should be going down this route (limiting entry of people) or not.
So the biggest problem with the Proclamation is that it is the wrong immigration policy.  We strengthen the US through immigrants.  Companies search and find the top scientists and engineers and bring them to the US.  Canada has been complaining about this "brain drain" for 50 years as one of the reasons why manufacturing in Canada declined.  National security is enhanced through a welcoming immigration policy.  War is largely possible only because you can define an "enemy".  You cannot define differences in jurisdictions that are sufficiently homogeneous.  We are, because of technological advances in transport and communication, in the final stage of achieving a global homogeneity after which, war will become a thing of the past (although it might take 4-5 generations to achieve).  Restricting movement of people is going against the global currents.  And that is why the administration is wrong to pursue this kind of policy.