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 adopted in 1924. Congress intensely debated this system for four decades before explicitly rejecting 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.
Nationalities Targeted
According to the New York Times, 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 could escalate into a “Red” or “Orange” classification if their governments failed to adopt changes within 60 days.
“Green” would presumably be required to avoid restrictions.
The Times reports that the Red list will include at least Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela and Yemen, and Reuters reports that Afghanistan and Pakistan will also fall onto the list. President Trump has previously promised to target Palestinians.
Other countries targeted during his first term include Eritrea, Nigeria, Myanmar, Kyrgyzstan, and Tanzania. Whether those will fall into Red, Orange, or Yellow, we don’t know. We can assume Haitians—whom Trump has repeatedly insulted—may also fall onto one of these new lists. Nicaraguans may get targeted simply because Biden had included them in the Cuba, Haiti, Nicaragua, and Venezuela parole sponsorship process, which gave them a unique opportunity to enter lawfully.
What Is the Justification?
President Trump’s order will likely rely on supposed inadequacies in the documents and information-sharing from certain foreign governments. He signed an executive order on January 20, 2025, 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 keep dozens and dozens of countries off the list. Trump asserted 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 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 explored how minuscule the threat of terrorism from these countries is. Although every death is a tragedy, only 28 of 3,046 deaths from foreign-born terrorism were caused by people from the targeted countries. Only three countries on the list caused any terrorist deaths at all. Moreover, Cato has previously shown how nationals from 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 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. It was challenged both on the grounds that it was a direct outgrowth of his anti-Muslim animus and that it violated INA Section 202. Appeals courts found that the ban was unlawful on both counts, and they concluded that if Section 212(f) allowed such an arbitrary ban, the law 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 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 to enter. The fact that this entry ban led to their discrimination in visa issuances was 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 law.
Effects of the Order
We can’t say how many nationalities will be affected by a new travel ban yet. However, over 145,000 immigrant visas were issued in the calendar year 2024 to nationals from countries that could now be targeted. This was 22 percent—more than one in five—of immigrant visas issued that year. In addition, another 407,000 nonimmigrant visas—to tourists, business travelers, temporary workers, and others—were issued to nationals from these countries in the calendar year 2024. Afghanistan (42,287), Pakistan (28,433), Cuba (24,901), Nigeria (10,726), and Yemen (8,760) would be the five most affected nationalities for immigrant visa applicants.
The largest single category of potential exclusions would be for special immigrant visas for Afghans (people who worked with the US government in Afghanistan). But the family categories would collectively be the most affected. The most awful aspect of the ban is possibly the over 37,000 spouses and minor children of US citizens and legal permanent residents who would be banned from reuniting with their parents and spouses in the United States. The last travel ban separated about 15,000 spouses and minor children of US citizens, so this ban would be far worse.
Trump’s plan also threatens more than 400,000 temporary visas, including business travelers, international students, tourists, and even fiancés of US citizens.
President Trump’s first term bans targeted people based on their country of citizenship, even if they never lived in the country with the 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 more people from these countries have lived for long periods outside their country of citizenship, including in some cases in the United States, but would still absurdly be banned from receiving an immigrant visa based on supposed inadequacies in their home countries.
This order would be an egregious violation of Americans’ liberty: 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 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. It would harm the US economy and punish lawabiding immigrants.
Conclusion
President Trump says 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 power over the legal immigration system. He can rewrite laws and ban whole nationalities on a whim. Congress could try to pass a law seeking to rein in these abuses, but President Trump has a theory of the Constitution under which the president can override US law. Congress should try to stop him anyway.
