A New, Discriminatory, and Arbitrary Legal Immigration System Is Coming

Trump's new travel ban will be worse than anything he's done before.

President Trump plans to rewrite—or, rather, write over—the Immigration and Nationality Act in the coming week. This action would be an absurd affront to the Founders’ constitutional design, no matter how he chooses to do it, but Trump is reportedly planning to reinstate a system of nationality-based discrimination that Congress first adopted in 1924 before repealing it in the Immigration and Nationality Act of 1965.

The Supreme Court greenlit this power grab during his first term, and now Trump is taking full advantage of it, doing grave damage to America in the process. The proposed restrictions could target more than one in five legal immigrants traveling to the United States from abroad and could separate over 150,000 spouses and minor children of US citizens and legal permanent residents from their families in the United States. It would impose incredible damage to the US economy and society based on utterly baseless security concerns.

Dozens of Countries Will Be Targeted

Trump plans to create a national origins hierarchy. His order will rank countries as either red, orange, yellow, and green:

- “Red” nationalities would be subject to a total ban.

- “Orange” nationalities would be subject to a partial ban.

- “Yellow” nationalities would be subject to new requirements, which would soon escalate into a “Red” or “Orange” classification if their governments fail to adopt changes within 60 days.

- “Green” nationalities would presumably be required to avoid restrictions.

Reuters and New York Times have reported slightly different lists. The two outlets include 44 potential nationalities who could be targeted—about one in five countries in the world. The Times list is 43 countries. The Reuters list is 42. They disagree over whether East Timor, Zimbabwe, and Mali will appear on the list at all.

Both lists agree that immigrants from 10 countries—Afghanistan, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, and Yemen—will be totally banned (Red), and that immigrants from five countries—Eritrea, Haiti, Laos, Myanmar, and South Sudan—will be mostly banned (Orange). The Times lists one extra “red” country (Bhutan), which is listed as yellow by Reuters, and it also lists five extra “Orange” countries, which Reuters lists as yellow: Belarus, Pakistan, Russia, Sierra Leone, and Turkmenistan.

What Is the Supposed Justification?

President Trump’s order will likely rely on supposed inadequacies in the documents and information-sharing from certain foreign governments. On January 20, 2025, he signed an executive order that mandated imposing a “uniform baseline for screening and vetting standards and procedures” and “identifying countries throughout the world for which vetting and screening information is so deficient as to warrant a partial or full suspension on the admission of nationals.”

We don’t know for sure which factors will be considered. In 2017, however, when Trump imposed a less severe ban on seven countries, I documented how he arbitrarily raised the vetting standards when he needed to keep a country banned and arbitrarily lowered the standards to exempt dozens and dozens of countries off the list. Trump claimed that the Department of Homeland Security had conducted a thorough worldwide review before settling on its list of banned countries, but it did not. DHS has refused to disclose the details of this supposed review—even under the Biden administration, in response to our Freedom of Information Act lawsuit.

The order will likely not do any work to show that immigrants from the targeted countries are more dangerous to public safety. Nonetheless, my colleague Alex Nowrasteh has analyzed just how minuscule the threat of terrorism from these countries is. While every death is a tragedy, only 23 of 3,046 deaths from foreign-born terrorism were caused by people from the targeted countries.

Only three nationalities on the list (Cuba, Pakistan, and Sudan) were responsible for any terrorism-related deaths at all—all these attacks occurred at least a decade ago. There is no evidence of an ongoing threat from these immigrants. Moreover, Cato has previously shown how nationals from many of these countries in the United States were less likely to commit crimes that led to their incarceration in the United States.

Isn’t This illegal?

In 1924, Congress implemented the National Origins Act, which created country-by-country limits on immigration skewed to favor Western Europe, disfavor Eastern Europe and Africa, and ban much of Asia. Congress then debated this system for the next four decades. The Immigration and Nationality Act (INA) of 1965 reformed this discriminatory system to make the quotas for every country the same. In addition, it stated in section 202:

no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.

During his first term, when Trump imposed a similar ban, he relied on INA section 212(f), which authorizes the president to block the “entry” of anyone he deems “detrimental” to the United States. The ban was challenged on two grounds: that it was a direct outgrowth of his anti-Muslim animus and because it violated INA section 202. Appeals courts found that the ban was unlawful on both counts and concluded that if section 212(f) allowed the ban, it would be an unconstitutional delegation of legislative authority to the president.

But the Supreme Court disagreed. It said that the courts would not consider “the sincerity of the stated justification for the policy” for adopting a facially neutral immigration policy. As for the prohibition on nationality-based discrimination, the Supreme Court said that there was no discrimination in visa issuances under section 202 because the only reason they were being denied visas (which authorize their travel to a US border) was because the president’s order made them ineligible for entry based on their nationality. The fact that this entry ban led to their discrimination in visa issuances was, in their view, irrelevant.

Under the Supreme Court’s interpretation of section 202, President Lyndon Johnson could have signed the 1965 act and used section 212(f) to immediately reimpose the old discriminatory system. The Justices simply ignored the constitutionality of delegating such unfettered authority to the president to create entirely new law.

What’re the Effects of the Order?

During the Biden administration, nearly half a million immigrant visas were issued to nationals from countries that could now be targeted. This was 22 percent—more than one in five—of immigrant visas issued over the last four years. In addition, another 1.3 million nonimmigrant visas—which include tourists, business travelers, temporary workers, and others—were issued to nationals from these countries. The two most affected nationalities for immigrant visa applicants would be Cuba (99,252) and Afghanistan (95,824)—both of which are on the “red” total ban list, according to both Reuters and New York Times. The rest of the top five are Pakistan (Orange in New York Times, Yellow in Reuters), Yemen (Red), and Haiti (Orange)

The ban would fall heavily on very close family of US citizens and legal permanent residents. In particular, more than 151,000 spouses and minor children of US citizens and legal permanent residents would be barred from reuniting with their spouses and parents—a heinous act. In comparison, the last travel ban separated about 15,000 spouses and minor children of US citizens, making this ban far worse.

The fact that so many of these immigrants have close family in the United States already casts doubt on the claim that it would be impossible to vet them. The second largest category affected by the impending ban would be special immigrant visas for Afghans (people who worked with the US government in Afghanistan). All of these people must be vetted and vouched for by US military personnel with whom they worked.

Trump's plan could also affect more than 1.3 million temporary visas, including those of business travelers, international students, tourists, and even fiancés of US citizens.

President Trump’s first-term travel bans targeted people based on citizenship, even if they never lived in the country with supposedly insufficient vetting. For instance, a Syrian citizen born and raised in Germany without receiving German citizenship (since Germany doesn’t have birthright citizenship) would still be subject to the Trump travel ban. Many individuals from these countries have lived for long periods outside their country of citizenship, including, in some cases, in the United States. However, they would still absurdly be banned from receiving an immigrant visa based on supposed inadequacies in their home countries.

President Trump is simultaneously seeking to end Temporary Protected Status and parole status for Haitians and Venezuelans, meaning that he’s attempting to force them out of the United States, but trying to block all return options for them. The order actually makes them less likely to leave voluntarily.

This order would be an egregious violation of Americans’ liberties: to associate, contract, and trade with citizens from the targeted countries and even to live with parents, spouses, and minor children in the United States. It would also stop Americans from saving Afghan allies from murder by the Taliban. It would do nothing to protect Americans or improve the already extremely rigorous vetting procedures for US immigration. Instead, it would harm the US economy and punish law-abiding immigrants.

Conclusion

President Trump claims he wants a “merit-based” immigration system, but a system banning people based on their nationality is the opposite of merit-based. It is a national embarrassment. Unfortunately, the Supreme Court has already handed President Trump near-total control over the legal immigration system. He can rewrite laws and ban entire nationalities at will. While Congress could try to pass legislation seeking to rein in these abuses, President Trump has an interpretation of the Constitution under which the president can override any US law. Congress should try to stop him anyway.