From Politico: Is Trump’s New Travel Ban Constitutional?

The new version is designed to deal with the court cases brought against the first one. A win for checks and balances.

- Click here for the article.

Version 2.0 of President Donald Trump’s travel ban was written to solve a specific problem: The federal courts were poised to hold the first version unconstitutional. But it’s not at all clear that the new order will survive judicial scrutiny, either.

Yes, Monday’s revised executive order suspending the entry of refugees and restricting entry by people from six Middle Eastern countries is more carefully crafted than its Jan. 26 predecessor. Some of the changes, like the exemptions for children and for people who already have visas, will likely obviate some constitutional objections to the earlier order.

But the darkest constitutional shadow hanging over the first travel ban hangs over the second one as well. If the current order is motivated by anti-Muslim prejudice, it violates constitutional guarantees of religious freedom, equal protection of the laws, or both.

To be sure, it would be highly unusual for the courts to strike down an executive order as purposefully discriminatory. For one thing, federal courts almost never strike down any sort of federal enactment on that ground, if only because federal courts—composed of people nominated by presidents and confirmed by senators—tend to have roughly the same mainstream intuitions about what counts as objectionable discrimination that the federal government’s lawmakers have. (The laws that get struck down as purposefully discriminatory are overwhelmingly state laws, usually from states where the relevant norms don’t quite line up with nationally predominant intuitions.)

Courts are also loath to second-guess executive branch decisions in the realms of national security and foreign affairs. But everything about this case is already highly unusual. The order’s history betrays the discriminatory purposes that today’s revised version is intended to conceal, and some of the new order’s particular content points in the same direction. As the courts will surely understand.

Is there a fundamental right to travel?

If so - as with marriage, but not education - strict scrutiny rules apply and a compelling public purpose must be served in order to restrict it. The law must also be narrowly tailored to achieve that purpose and must be the least restrictive means to achieve it.

A recent post in the Federal Law Blog point to a 1958 case that argued that it is.

- Click here for the post: Freedom to Travel and the IRS.
-  Oyez: Kent v. Dulles.

“The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. […] Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, maybe necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”

The Right to Travel

I use the right to travel as an example of the potential unalienable rights that might fall under the heading "among" in the Declaration of Independence - see below - but do it with tongue in cheek.

Maybe I should rethink this. The Daily Kos points out that a recent copy of the Federal Register contains something called the Secure Flight Plan which, they argue, will allow the Department of Homeland Security to take over pre-screening passengers, which means that the federal government will have to give you permission to get on an airplane before you can fly.

This has been in the works for a while and administration officials say that this will not violate individual liberties.

Sticklers among you will point out, correctly, that this does necessarily restrict travel, just a certain mode of transportation. But still, where does this end?