Peter Margulies says no in Lawfare. The new ban excludes lawful permanent residents, visa holders, and others with ties to the United States—and gives notice, in these ways satisfying due process concerns. By omitting mention of religious minorities in Muslim-majority countries, it avoids establishment clause and equal protection concerns. Margulies also says that the leaked DHS memos, which suggested that a travel ban would produce no security benefits, are marred by errors.
On purely legal grounds, one can find little to quarrel with Margulies’ argument. If this executive order had been issued by any other president, then it would have passed muster. But it was not issued in a vacuum. Two courts appear to believe that Trump was motivated by animus toward Muslims when he issued the first travel ban. Nothing in the new executive order will make them think differently. (Especially not the claim in the new order that the old “order was not motivated by animus toward any religion.”)
Animus is not disqualifying but the courts need to be persuaded that a valid security reason justifies the exclusion of nationals from the (now) six Muslim-majority countries (Iraq having been dropped because of its “close cooperative relationship” with the United States). The DHS memos, whatever their flaws, do not help Trump’s case. In fact, in light of the DHS memos, the new travel ban is infirm for the same reasons as the old ban, as found by the district court in Aziz v. Trump: (1) Trump’s campaign and post-campaign statements targeting Muslims; (2) the pretextual character of the legal analysis; and (3) the absence of endorsement of the security rationale by the national-security bureaucracy.
Trump’s argument, of course, is that the countries are dangerous and unable to control out-migration of terrorists, and that current vetting procedures are inadequate or might be. But he offers no proof. Talk is cheap, even when it comes from a billionaire. If any other president had made this argument, a court would say “fine,” proof or no proof. But Trump is not any president.