President Trump’s travel ban Proclamation that bans immigration and travel from seven countries (and limits it from an eighth) is based on authority in immigration law that other presidents have used. But all but one of these bans were quite different from President Trump’s. They banned at most a few thousand—almost always specifically named—individuals based on their personal conduct, not their nationality. In the one exception, not all nationals were banned, and the requirements to end the ban were very clear. Neither of which can be said for the Trump ban.

Different in Scale

No president has attempted to ban as many foreigners with a single stroke of his pen as President Trump did this September. If fully implemented, his ban would impact the ability of 183.6 million people to apply for a visa to travel to the United States—that’s the sum total of the population in the seven banned countries, but there are millions of their nationals who live outside their borders. This compares to the 10.2 million Cubans that President Reagan partially banned in 1986. All of the other 42 bans combined barred only roughly 30,000 (see explanation at the end).

Figure 1
Number of Banned Persons (in Millions) by Order

Sources: Author’s calculation based on the Office of Foreign Assets Control, World Bank, Congressional Research Service (listing the bans)

Here’s another important point: A majority of all of those banned under the 42 orders likely would be inadmissible under existing law anyway. About a third, for example, are terrorism suspects sanctioned under a Bush administration executive order and barred from entry by President Obama. But current law already bans those people from entering. For this reason, and because very few of these people had any intention to travel to the United States anyway, hardly any visa applicants have been denied due to a presidential proclamation. From 1991 to 2016, consular officers initially determined that a presidential proclamation could apply to 5,762 visa applicants. Of them, less than half—2,626—were ultimately denied a visa. As Figure 3 highlights, several years have seen no denials at all.

Figure 2

Number of Visa Applicants Denied Due to a Presidential Proclamation, FY 1991 to 2016

Sources: U.S. Department of State, “Table XX Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for Refusal Under the Immigration and Nationality Act),” FY 1991 to FY 2016

The Supreme Court allowed the second iteration of President Trump’s travel ban to go into partial effect from June to September, allowing him to ban those without any family or connections to U.S. businesses. Unfortunately, the State Department probably will not release data on visa denials until sometime next year. But it has revealed that it was approving roughly half as many visa applications in 2017 as it did in 2016 for the banned countries. We know that 693,827 people from banned countries received a visa from 2002 to 2016, including 73,503 in 2016. If even 4 percent of this total were denied a visa due to the latest travel ban, then more visa applicants will be denied a visa under this travel ban than all bans since 1991.

Different in Methodology

Unlike President Trump’s travel ban, 98 percent of prior president’s proclamations banned individuals based on their personal conduct, and almost always—93 percent of the time—they required that the targeted person be specifically identified and named by the Department of State. Only 2 percent of the time—one case—was nationality alone the requirement for the ban, and in no case was every visa applicant with that nationality subject to the ban. Under the Trump ban, all visa applicants from Syria and North Korea are subject to the ban based on their nationality alone, and most applicants are banned from Iran, Chad, Somalia, and Yemen.

Figure 3

Pre-Trump Executive Actions to Bar Visas by Methodology for Identifying Targets, 1980–2016

Sources: Author’s calculation based on the World Bank, Congressional Research Service (listing the bans)

The personal conduct included selling military equipment in Libya, purchasing certain materials from North Korea, attacking United Nations mission, or being a member of the North Korean regime. To avoid these types of bans, the targeted persons could simply stop engaging this type of activity. (Table 1 at the end of this post lists each proclamation or executive order as well as who the ban targeted.)

Different in Application

Roughly half of all pre-Trump bans did attempt to coerce governments indirectly by targeting their officials due to actions that the government was taking. Yet in virtually all of these cases, the government’s offense is clearly stated. In 1996, for example, President Clinton faulted “the current regime in Burma” for continuing “to detain significant numbers of duly elected members of parliament, National League for Democracy activists, and other persons.” In 1988, President Reagan imposed a ban on certain Nicaraguan officials for the “unjustified expulsion from Nicaragua of the United States Ambassador and seven other United States diplomats.”

The only other case in which individuals were banned based solely on the conduct of their government—and not due to their personal participation in that conduct as government officials—was President Reagan’s ban on Cuban immigration in 1986. But this ban exempted the largest category of Cuban immigrants—immediate family members of U.S. citizens. It also had a very clearly stated objective to get the Cuban government to accept the repatriation of 2,746 Cubans, and it achieved its objective the following year in 1987.

By contrast, President Trump’s travel ban—while seeming to lay out a series of very specific criteria—does not actually ban any country based on this criteria. As I’ve detailed before, the president fails to apply the criteria to countries off his travel ban list and applies stricter criteria to make sure his chosen countries stay on the list. This inconsistency means that no country actually knows why it is banned. Moreover, since the order doesn’t apply its stated criteria, countries that currently fail them, whether they are on the list or off it, have little incentive to change their behavior. This is a very different situation than the one in 1986. Cuba knew exactly why it was on the list and what it needed to do to get off of it. 

President Trump’s travel ban will impact more people than any other, and it operates in a way different from all others. It is truly unprecedented.

Table 1: Presidential Proclamations to Exclude Certain Classes of Aliens

Sources: Author’s calculation based on the Office of Foreign Assets Control, World Bank, Congressional Research Service (listing the bans)
*Other than the Trump ban and the Cuba ban, the number is based on the number of designations under the Office of Foreign Assets Control. This number also includes “entities” such as organizations, agencies, and businesses, so the total number is probably somewhat larger for this reason as well as the fact that the bans often included the immediate family of the targeted person. Italicized numbers indicate that the number is based on the current sanctions impacting that country.

Table 2: Presidential Proclamations to Exclude Certain Classes of Aliens