Analyzing the NO BAN Act: Congress’s Challenge to the Executive Travel Ban

After Presidential Proclamation 10949 was issued on June 4, 2025, 19 countries were placed under travel bans or restrictions from the U.S. With a State Department memo on June 17, 2025, this list was preliminarily expanded to include 36 more countries. With the expansion yet to go into effect, national legislation restricting travel bans has piqued public interest. One such bill, the National Origin-Based Antidiscrimination for Nonimmigrants Act (NO BAN Act), has significant implications for executive power over immigration policy.

Understanding U.S. Travel Bans

A “travel ban” refers to a government-imposed restriction on the entry of foreign nationals into a country. The June 2025 travel bans are enforced through either a complete ban on new visas or a restriction on certain types of visas, such as student, exchange visitor, or business. Crucially, travel bans were defined by the Supreme Court in the 2018 case Trump v. Hawaii as affecting “admissibility” of visas rather than “issuance.” That is, travel bans affect who is eligible for obtaining a visa as opposed to the legal process of issuing a visa. Nevertheless, this distinction is contested. 

Travel bans from the executive branch largely stem from the precedent set by Richard Nixon’s 1972 Presidential Memorandum, “Establishing a Cabinet Committee to Combat Terrorism.” Prior to this, immigration restrictions were carried out through broader legislation, like the Immigration Act of 1924 which similarly limited entry into the United States. Since then, other presidents have used executive action to enforce immigration, such as Carter’s travel bans in 1979 or Obama’s deportation orders in 2014. However, the scope has never been large enough to include sweeping restrictions against 19 countries. Therefore, waves of backlash against the Trump administration’s authority to create such large bans have erupted, with the NO BAN Act as one solution to checking executive power.

The NO BAN Act

The NO BAN Act was initially proposed by Senator Chris Coons (D-DE) and Representative Judy Chu (D-CA) in 2017. Despite passing in the House in 2021, it stalled in the Senate. It initially responded to a series of travel bans proposed by the first Trump administration, dubbed “Travel Bans 1.0, 2.0, and 3.0.” The NO BAN Act was reintroduced in the current 119th Congressional session but has not reached a vote in the House or Senate. 

The NO BAN Act addresses the national debate of whether the executive branch has the authority to issue visa restrictions without Congressional approval. To do this, the Act is comprised of several provisions:

• Mandate presidential consultation with the Secretary of Homeland Security and Congress when creating travel bans that affect visa applications and refugee admissions;
• Require specific evidence tailored to each country that explains how the ban promotes public safety;
• Require more waiver processes for workers, families, and refugees.

Recent Travel Bans 

Travel Bans 1.0 and 2.0 were blocked by three different federal courts and critiqued by the media on the basis that they unfairly targeted majority-Muslim countries. However, Travel Ban 3.0 differed in three key aspects from earlier iterations: it expanded to non-majority-Muslim countries, provided more exemptions for students and families, and cited national security concerns as a basis for exclusion. This shift in rhetoric was why the Supreme Court chose to uphold the travel bans in the 2018 case Trump v. Hawaii. As a result, the case reaffirmed the executive branch’s authority in immigration enforcement, which the Trump administration utilized by passing “Travel Ban 4.0,” which expanded the ban to include six more countries. 

Recently, the second Trump administration enacted a travel ban on June 4, 2025, that banned twelve countries from receiving visas and restricted seven more. Additionally, 36 countries are in a sixty-day waiting period to ascertain if their visa processes will be restricted due to their compliance with the U.S. government’s screening and vetting processes. The reasons provided in the Presidential Proclamation declaring the travel bans revolve around: visa overstay rates, ranging from six percent to 70 percent; insufficient vetting for passports; and the presence of terrorist groups in the country.

Legal Opposition to the NO BAN Act

Since the NO BAN Act was introduced into Congress to challenge Trump’s travel bans, it has been criticized for overreaching into the President’s power to enforce immigration. This power was greatly strengthened by the recent landmark case of Trump v. Hawaii, which ruled in favor of Trump enforcing Travel Ban 3.0. The four key principles of the Trump v. Hawaii decision that oppose the NO BAN Act are:

1. Executive Authority: The President has ultimate authority on immigration enforcement provided by the Immigration and Nationality Act, the principal doctrine for immigration law in the US.
2. Admissibility vs. Issuance: Travel bans do not unfairly affect the visa process because they affect who is eligible for a visa (admissibility), rather than the legal process of issuing visas (issuance).
3. Kleindienst v. Mandel: A 1972 court case that denied a visa to a Marxist academic, which established legal precedent to exclude motivation for visa denials and instead focus solely on legal authority to do so.
4. Scrutiny of evidence: Following the support of Kleindienst v. Mandel, the Court used a “rational basis review,” which investigated whether a law is related to government authority. This is in contrast to the “heightened scrutiny” approach, which employs a detailed analysis, identifying flaws and motivations of legislation. 

First, the ruling by the Supreme Court of the United States (SCOTUS) regarding Trump v. Hawaii used section 1182(f) of the Immigration and Nationality Act (INA) as evidence for allowing the President to make decisions on immigration. This is because the Court said that section 1182(f) “exudes deference to the President in every clause,” allowing him to exclude foreign nationals “‘sole[ly]’ because their entry ‘would be detrimental to the interests of the United States.’” Additionally, since the travel bans are used to promote public safety and national security, the executive branch has additional authority as the Commander in Chief to protect those concerns. Supporters are concerned that Congressional bills like the NO BAN Act would be slowed down by bureaucratic oversight and would not effectively protect citizens.

Second, travel bans are considered legal because SCOTUS distinguished “admissibility” as distinct from the legal process of obtaining a visa outlined in INA 1152(a). The court writes, “These are separate steps: to enter the United States, a foreign national first must be deemed ‘admissible… (and therefore eligible to receive a visa)’ and second must get a visa.” In this sense, travel restrictions do not affect the process of obtaining a visa outlined by the INA.

Lastly, Kleindienst v. Mandel and the use of rational basis review follow a broader pattern of revising the ban to be non-religious since the first time Travel Ban 1.0 was struck down in Trump v. Washington. This lack of religious rhetoric is particularly relevant to the current 2025 travel bans, which do not predominantly affect majority-Muslim countries. As Attorney Andrew Cherkasky notes on Fox News, “President Trump is fixing some mistakes from the first term. Specifically, [he] famously called it a ‘Muslim Travel Ban’… What he’s done is essentially expanded that ban to 12 countries and no longer focuses on religious countries.”

Legal Support for the NO BAN Act

However, the close 5-4 ruling is reflected in the disputed evidence that legal scholars and dissenting justices have raised regarding the decision:

1. Nondelegation: The established legal role of courts is to restrict executive action that has no limits, as a key pillar of checks and balances.
2. Admissions: The distinction the court made between admissibility and issuance does not reflect the drastically decreased visa acceptance numbers.
3. Kerry v. Din: A recent ruling on Kleindienst v. Mandel that would make the latter inapplicable in Trump v. Hawaii and thus require consideration of the motive for the travel ban.
4. Disputed evidence: The lower standard of evidence did not address concerns regarding inflated overstay rates or gaps in waiver processes that deemed the travel bans impartial.

First, the foundation of the state and federal courts was to create checks and balances. However, by exuding “sole deference” of matters over immigration to the President, the power of Congress and SCOTUS to limit executive action is eroded. Therefore, the principle of nondelegation is important to reasserting checks on sole deference to the President. Moreover, there is a larger schism between the lower courts and SCOTUS, as every version of the travel bans—including the one contested in Trump v. Hawaii—was struck down by lower courts but overruled five to four. Additionally, legal authority for lower courts to issue injunctions blocking executive action has been eroded following the Trump v. CASA case of June 27, 2025. Therefore, the role of congressional oversight as executive reach in immigration grows more important as the number of countries being restricted continues to increase.

Second, the distinction between admissibility and the visa process in Trump v. Hawaii is incredibly fine and does not reflect the sharp increase in visa denials. Between the year before Travel Ban 3.0 (2017) and the year it was enforced (2018), there was an increase of approximately 36,000 visa application rejections. Moreover, SCOTUS relied on the existence of a waiver process for adopted children and spouses to uphold the travel ban. The progress of this waiver system differs by country, with 98 percent of applications from December 2017 and April 2018 never receiving a waiver.

Third, in the five-to-four ruling of Trump v. Hawaii, not every justice agreed on how Kleindienst v. Mandel should be applied. Justice Sonia Sotomayor, in her dissenting opinion, cited a recent application of the case in Kerry v. Din, which established that a lower standard of scrutiny can only be applied only absent “an affirmative showing of bad faith,” which Trump v. Hawaii did not meet the standard of, as it was dubbed a “Muslim Ban.” However, critiques of the travel bans surrounding religious animus have yielded little legal movement, as most official documents avoid any mention of religious motivation, instead opting for national security concerns. Nevertheless, the Court unevenly applied the precedent of Kleindienst v. Mandel in their case, as it still took into consideration tweets and campaign slogans without denying they were discriminatory.

Lastly, the SCOTUS case, like the NO BAN Act, agrees that the executive branch must provide evidence tailored to each country it is banning. For many of the countries, their overstay rates and unwillingness to accept deportees are justification for a travel ban. However, the Department of Homeland Security’s Overstay Report has been critiqued for overinflating overstay numbers since it records both actual overstays and unverified departures.

Humanitarian Support for the NO BAN Act

While national security and public safety are cited as main concerns for enacting travel bans, the chances of American citizens being harmed by foreign terrorists are highly improbable, as they accounted for 0.32% of all homicides in America from 1975 to 2022. Therefore, instituting broad travel bans must be weighed against the costs of both excluding visa recipients and government resources spent enforcing tighter border security. Some of the key areas used to support the NO BAN Act include:

• Research: With few exceptions for researchers and global health experts, travel bans weaken the United States’s concentration and geographic support for medical and scientific practices, trainings, and conferences. 
• Economy: Households with nationals from the targeted countries earn 3.2 billion dollars in income, pay 715.6 million in taxes, and hold 2.5 billion in spending power. 
• Supply chains: With the ban on crew members or other workers who transit through the United States to other locations nearly complete, bans could disrupt international transportation and supply chains that support both domestic and international economies.
• Families: The first administration’s travel bans kept roughly 3,700 spouses and 5,500 adopted children waiting for visa waivers for at least a year.
• Advocates: Almost 400 civil rights, faith, and community organizations have voiced their support for the bill alongside over 50 immigration law professors who sent a letter of support to Congress.

Future Influence

With the potential for the travel bans to block at least 34,000 immigrant visas and 125,000 non-immigrant visas from being issued each year, the NO BAN Act has the potential to affect hundreds of thousands of visa applicants during the next four years of the Trump administration who would have been barred from entry. Moreover, Trump’s travel bans exist within a larger framework of unchecked executive authority over immigration. For example, Trump v. Harvard denied the President’s authority to ban international students from studying at Harvard, as it was determined to be motivated by a specific animus against Harvard. The required scrutiny of evidence and Congressional oversight imposed by the NO BAN Act would avoid unconstitutional actions like these and therefore serve as a building block for checking executive authority.

Conclusion

Despite any dissenting critique of the Trump v. Hawaii ruling, the decision reaffirmed the President’s legal authority to create and enforce travel bans, provided there is specific evidence for each country. The NO BAN Act elaborates on this process by requiring rigorous evidence standards and efficient waiver procedures for families, workers, and refugees; as well as Congressional and Cabinet oversight before enforcing travel bans. Notably, the NO BAN Act does not refuse the executive branch’s power to create travel bans, but instead promotes reforms grounded in oversight and humanitarian concern.