Democrats Suspend Their Attempt to Limit President’s Travel-Ban Authority

CAIR, which calls itself the nation’s biggest Muslim civil rights and advocacy group, called on Speaker Nancy Pelosi (D-Calif.) and Majority Leader Steny Hoyer (D-Md.) “to recommit to rescheduling a vote” on the legislation, and urged Americans to “ask their member of Congress to support the immediate rescheduling of this important measure.”

Although the bill was introduced long before the outbreak of the novel coronavirus, Republicans drew attention to the fact that the legal authority it targets is the authority that enabled Trump to move quickly last month to deny entry to any foreign national who has visited China in the 14 days prior to arrival.

That same authority – Section 212(f) of the Immigration and Nationality Act (INA) – allowed the president this week to expand that restriction to apply to 26 European countries in the Schengen zone.

Democrats pushed back against that criticism, arguing that the bill is aimed at what they call the “Muslim ban,” not the federal government’s response to the COVID-19 outbreak.

Rep. Judy Chu (D-Calif.), who introduced the National Origin-Based Antidiscrimination for Nonimmigrants (NO BAN) Act in April last year, complained that Republicans were being “dishonest” about her bill.

“The House right now is debating my NO BAN Act to repeal President Trump’s cruel Muslim Bans,” she tweeted. “But, true to form, Republicans are being dishonest about it. My bill in NO WAY hampers our coronavirus response. In fact, there’s explicit language about protecting public health.”

Chu’s bill, which is co-sponsored by 219 of the 232 Democrats in the House, seeks to repeal the various iterations of Trump’s travel proclamations, and places restrictions on the executive branch’s future use of travel bans.

It would allow the president to impose temporary future bans if the secretary of state and secretary of homeland security determine, “based on specific and credible facts, that the entry of any aliens or any class of aliens into the United States would undermine the security or public safety of the United States or the preservation of human rights, democratic processes or institutions, or international stability.”

But the administration would have to consult with Congress before introducing a restriction, and provide a report to Congress within 48 hours of its implementation. Failure to do so would result in its immediate termination.

The bill also amends the INA to explicitly prohibit discrimination based on religion. And it allows anyone in the U.S. “unlawfully harmed” by a travel restriction to sue in federal court.

‘Dangerous delays’

At a coronavirus-focused House Homeland Security Committee hearing on Wednesday, Rep. Dan Bishop (R-N.C.) asked Ken Cuccinelli, acting Deputy Homeland Security Secretary, about the importance of Section 212(f) in the response to the outbreak.

“We’re voting tomorrow on this political NO BAN Act, to restrict the president’s use of 212(f) authority,” he said. “Didn’t the president use 212(f) authority here in order to have an early intervention to stop Chinese folks, nationals from coming in in a way that’s helped the response to this?”

“That’s exactly what he used,” Cuccinelli replied. “It was available to use quickly, at the advice of the [White House coronavirus] taskforce, and it has been effective.”

“There is no question that the use of that authority has bought us time,” Cuccinelli said. “And you’ve heard from both Dr. Redd and I, various ways that we have used that time in the federal government, and our partners in local and state government have used that time, to be better prepared as this virus advances.”

(Dr. Stephen Redd, the CDC’s deputy director for public health service and implementation science, also testified.)

After the scheduled vote was removed from the calendar, Bishop tweeted, “So, Dems have decided not to put the #NoBanAct on the floor after all. They know that @realDonaldTrump’s decision (and power) to ban flights from China (and now Europe) has saved lots of American lives.”

In a statement of policy, the White House argued that the president’s authority to restrict travel into the U.S. “has been central to the Administration’s ongoing efforts to safeguard the American people against the spread of COVID-19.”

At a minimum, it said, the legislation “would cause dangerous delays that threaten the safety, security, and health of the American people.”

“It would also divert limited agency resources away from the critical function of working with foreign governments to improve immigration screening and vetting, hindering the ability of DHS and other agencies to protect our homeland.”

The statement said Trump’s advisors would recommend that he veto the NO Ban Act if it reaches his desk.

‘Muslim’ Ban?

The travel proclamations that prompted Chu’s legislation include one which restricts entry to certain nationals of five Muslim-majority countries (Iran, Libya, Somalia, Syria and Yemen) and two non-Muslim-majority countries (North Korea and Venezuela).

The Supreme Court upheld it in June 2018.

Last January 31, Trump expanded the restrictions to cover Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. As with the earlier order, restrictions vary, and not all citizens of all countries are affected.

Of the 13 countries now listed, eight are Muslim-majority countries. Burma, Eritrea, Tanzania, North Korea and Venezuela are not.

The eight Muslim-majority countries together have a Muslim population of some 289 million people, accounting for fewer than one-fifth of the world’s estimated 1.6 billion Muslims.

Another 49 members of the Organization of Islamic Cooperation are not affected by the proclamations, and they include five of the six most populous Islamic countries – Indonesia, Pakistan, Bangladesh, Egypt and Turkey.

Critics nonetheless continue to call it the “Muslim ban.”

“Make no mistake, this ban is and always has been a Muslim Ban – just as the President promised it would be during his campaign,” Chu said in a statement last month when the House Judiciary Committee marked up her bill.

“And it is completely unnecessary. America has one of the strongest vetting systems in the world and we have demonstrated an ability to safely grant visas to travelers and visitors for years. But security was always a flimsy pretext for Trump’s real goal of fomenting bigotry and dividing families, which is precisely what this ban has done.”

Rep. Ilhan Omar (D-Minn.) tweeted her disapproval, calling it “hateful and xenophobic.”

Six of the eight Muslim-majority countries named in Trump’s orders were identified as terrorism “countries of concern” by the Obama administration in 2016, and as a result were affected by new restrictions relating to visa waiver program. Nigeria and Kyrgyzstan are the exceptions.