President Trump’s Jan. 20, 2025 Executive Order (EO) on “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats” is squarely aimed at reviving some version of the Muslim travel ban of his first term. The order goes much further though, presaging government action to revoke the visas of foreigners living in the United States based on their political and cultural views. Any such actions will—and should—be challenged on First Amendment grounds.
In 2015, candidate Trump announced he wanted to bar all Muslims from entering the country, an idea that he came back to time and again. On taking office in January 2017, he temporarily banned people from seven predominantly Muslim countries from entering the United States. His second order on the subject called for an inter-agency “worldwide review” of whether additional information was required from some countries to properly adjudicate visa applications. Although initially blocked by federal courts, the Supreme Court allowed the third (September 2017) iteration of the ban to go into effect. This version indefinitely blocked travel to the United States from six predominantly Muslim countries, North Korea, and some Venezuelan government officials. The Trump administration claimed that this list was based on its review of information sharing from the countries targeted. Despite serious inconsistencies in the review, a majority of the Court found that it provided enough of a justification to ignore the president’s clear intent to target Muslims. The ban was rescinded by President Biden on his first day in office in 2021.
The current Trump administration clearly learned some lessons from the legal challenges it faced in 2017-2018. Last week’s order instructs the Secretaries of State and Homeland Security, the Attorney General, and the Director of National Intelligence to identify countries “for which vetting and screening information is so deficient as to warrant a partial or full suspension on the admission of nationals from those countries pursuant to section 212(f) of the Immigration and Nationality Act.” (That provision of the INA, which also formed the basis of Trump’s previous orders, gives the president the authority to suspend the entry of noncitizens that he finds would be “detrimental” to U.S. interests.) We can expect that the administration will again move to ban the nationals of some countries based on the interagency report, which is due on March 21.
The order also contemplates several measures targeting people already in the United States. The Secretary of State is required to identify the number of people who have been admitted since January 2021 (i.e., the start of President Biden’s term) from countries that do not sufficiently share information with the United States. He is also charged with identifying other relevant information about those nationals’ actions and activities and where such information supports the exclusion or removal of people, and the DHS Secretary is charged with excluding or removing such people. While we don’t yet know exactly what the current review will find, the almost identical interagency review ordered in 2017 identified 16 countries as being deficient in sharing information, with eight making it onto the banned list. Publicly available data from 2021-2023 shows that the United States has admitted just over 200,000 people from the eight banned countries, all of whom—at a minimum—could now be at risk.
Several additional provisions of the order—which apply regardless of whether a person comes from a country found to be deficient in sharing information—are targeted squarely at First Amendment protected activity. Section 3(d) asks the Secretary of State to recommend actions against foreign nationals who undermine or seek to undermine American citizens’ constitutional rights, including rights to freedom of speech and the free exercise of religion. These actions may be used first to target foreign students and professors protesting the war in Gaza, among other things. As presidential candidate, Trump made clear that he intended to act against these protestors, promising to “immediately deport” them. The Republican Party’s 2024 platform also promises to “DEPORT PRO-HAMAS RADICALS AND MAKE OUR COLLEGE CAMPUSES SAFE AND PATRIOTIC AGAIN.” And several members of Congress have explicitly called for the deportation of pro-Palestinian protestors on the basis that they have endangered Jewish students. The order invites the Secretary to suggest additional measures against those who call for the “replacement of the culture on which our constitutional Republic stands.” This could be used to target a wide range of foreign nationals in the United States who take part in protest activity, including pro-immigrant advocates. Finally, the order calls for additional measures against those who provide “aid, advocacy, or support for foreign terrorists.” This formulation is similar to the grounds for exclusion and deportation outlined in immigration law, and the administration is likely to interpret it broadly to apply to foreign nationals who are alleged to have made pro-Hamas statements.
Non-citizens, however, also have constitutional rights. Although the law in this area is complicated, recently disclosed DHS memoranda evaluating the government’s ability to exclude or remove foreigners in the United States based on speech that allegedly supports terrorism concede that such efforts would almost certainly be subject to strict scrutiny and likely wouldn’t survive such review. While it’s true that the Secretaries of State and DHS typically retain broad discretion to revoke visas and other immigration documents, and it can be challenging to obtain judicial review of such decisions, the law simply does not afford the administration a blank check to deport.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions