From the Editors
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Trump’s Travel Ban: What We Know, What We Don’t Know, and What May Happen Next
On 27 January 2017, President Donald J. Trump issued an executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Trump’s travel ban (or “Muslim ban,” as it has come to be called—not inaccurately, since it clearly targets Muslim-majority countries) has of course received a huge amount of attention. However, even among those attempting to follow the story closely, areas of confusion and misinformation have remained. In part, this has to do with the state of chaos that followed from attempts to enforce the ban, which some have attributed to a deeply dysfunctional and inept administration and others have described as an intentional plan to sow fear and uncertainty among the ban’s opponents. It may also have to do with the extraordinary resistance that Trump’s executive order has met, with multiple legal challenges launched within hours and, perhaps more important, massive popular resistance, including huge protests at major airports where customs officials were attempting to enforce the terms of the travel ban.
In what follows, our goal is not to produce a detailed analysis of Trump’s executive order. It is, simply, to provide as best as we can some of the basic facts regarding the travel ban: what we know for certain; what areas of uncertainty remain; what could potentially happen next; and what is being done to resist and stop the ban. Some of what we have attempted to address has to do with the nature of executive orders more generally, along with the question of how they might be challenged—given that Trump has issued nineteen executive orders (and counting) since his inauguration, these may well be questions of interest beyond this particular order.
Given the speed with which events have been going forward since 27 January, it is impossible to do more than just provide a snapshot of what we know (and don’t know) at this particular moment. (In the most recent development as we prepare to publish this, the Court of Appeals for the 9th Circuit rejected the Trump Administration’s request to set aside a restraining order issued by a federal district court judge in Washington state that temporary halts his executive order.) Nevertheless, we hope what follows will prove useful for those attempting to understand, and to resist, what Trump’s executive order has unleashed.
What do we know for sure about Trump’s executive order, and what exactly does it call for? What are its terms, according to its original wording, prior to any legal challenges or cabinet clarifications (for example, subsequent clarifications related to green card holders)?
The order covers a series of related areas:
(1) New screening standards for all visitors to the United States (with a thinly veiled allusion to a distorted conception of Islam) are to be applied; according to the order, visitors will now be screened for all of the following:
- Support for the Constitution
- Placing “violent ideologies” above US law
- Engaging in “acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own)”
- Intending to “oppress Americans of any race, gender or sexual orientation”
(2) All nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen are barred from entry to the US for ninety days (except those with diplomatic visas and a few other exceptions).
(3) Additional countries may be added to the ban beginning in ninety days, according to the following basis: Countries will be reviewed to determine whether they provide adequate information for the US to adjudicate visa applications; the Department of Homeland Security (DHS), the Director of National Intelligence (DNI), and the State Department are to identify those countries that are insufficiently cooperative within thirty days; the countries on the list will be given sixty days to improve cooperation; those that fail to improve will be identified by DHS in consultation with the State Department and their nationals will be banned from entry.
(4) The bans are subject to a case-by-case waiver on the grounds of national interest by DHS and the State Department
(5) A new uniform screening standard and procedure will be implemented for all immigrants (including the new standards above) possibly with in-person interviews. In addition, the maintaining of a database of all identity documents proffered and a “process to evaluate the applicant’s likelihood of becoming a positively contributing member of society” are to be implemented.
(6) All refugee admissions are suspended for 120 days for a review by the State Department in conjunction with DHS and consultation with the DNI and determination of necessary additional procedures.
(7) When refugee admissions are resumed, priority will be given to “refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.”
(8) The admission of Syrian refugees is indefinitely suspended.
(9) The total number of annual refugee admissions will be reduced to 50,000 (from 110,000, the ceiling that had previously been set for 2017).
(10) A biometric entry-exit tracking system will be introduced (previously the US had a biometric entry tracking system, but did not also collect biometric information on exit).
(11) There will be an indefinite suspension of the Visa Interview Waiver Program, which means all visa applicants will now be required to go through an in-person interview even if they are applying to renew their visas (previously, certain repeat visa applicants were able to forego in-person interviews). This measure increases the processing workload for consular officials, making a significant slowdown in all visa processing very likely.
(12) There is a mandate for new data collection, requiring DHS and the Department of Justice (DOJ) to collect
- information regarding the number of foreign nationals charged with terrorism-related offenses, convicted of such offenses, or removed for such offenses or any other national security reason;
- information regarding “the number of foreign nationals in the United States who have been radicalized after entry into the US and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations”;
- information regarding the “number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals.”
Since the order was promulgated, there has been one important change, according to the Trump administration: The Secretary of Homeland Security made a determination that the entry of Lawful Permanent Residents (LPR) from the countries affected by the ban is in the national interest. Therefore, DHS is now treating LPR status (that is, green card holders) as a dispositive factor for exemption from the executive order. However, this position could be rescinded at any time; the administration has made clear that they intended for the executive order to apply to LPRs except to the extent waived by DHS.
What are the things that we still don’t know about the order? That is, what are some of the vague areas of the order and some of what still has not become clear?
(1) One area of confusion is that the de jure language is vague about LPRs.
It was not clear on its face that the order was intended to apply to LPRs, who are constructively deemed not to be “entering” the country when they return from short-term travel (since they are considered to have been resident throughout the relevant period). But the administration then issued specific guidance that they did intend to include LPRs. Later, that inclusion was suspended by a waiver from the Secretary of Homeland Security.
(2) It remains unclear how screening questions are being applied to exclude non-US citizens from other Muslim-majority countries not specifically mentioned in the executive order.
There have been numerous reports of visa revocations for students from Muslim-majority countries not included in the seven designated for the ban. This may be because the new screening standards are being used to exclude other Muslim visa holders from entry. Anecdotal information suggests that some individual Jordanians, Turks, Saudis, and other students returning from winter break have had their valid visas revoked and have been deported since Trump’s inauguration.
(3) It is unclear how exceptions for religious minorities are being implemented, if at all.
It is not clear whether any effort is being made to adjudicate whether some Syrian or other refugees may fall within the religious minority prioritization and whether this would entitle them to case-by-case waiver of the entry ban
What are the conditions that an executive order has to meet to be valid? For example, can executive orders violate the constitution? Can they violate existing local, state, or federal law? Can they create law?
An executive order (EO) is a law that is promulgated by the executive, although the power to make law is typically granted to Congress (the legislative branch) under the Constitution. The executive is deemed to have inherent law-making authority under the Constitution in the area of foreign affairs, but there is Supreme Court jurisprudence that stands for the proposition that even in this area, Congress has some power to limit executive authority. In other areas where the executive does not have legislative power grounded in the inherent powers of the office of the president under the Constitution, there must be an express delegation of such authority to the executive by Congress.
Accordingly, an EO is a form of law subject to constitutional constraints, which may be overturned by a court if it is deemed unconstitutional.
The inherent authority of the president to act in response to a national emergency is deemed to be on solid ground when that authority is expressly authorized by the Constitution or exercised with Congressional approval (including prior statutory approval) or with acquiescence/implicit authorization. If Congress does not object to an exercise of executive authority, then there is reason to think that it has acquiesced in recognizing the president’s power to so act.
However, if Congress has enacted a statute that is in tension with an executive order, that EO may be found unlawful by a court on the grounds of the absence of Congressional approval.
What are the ways that executive orders can be challenged? For example, can Congress legislate something different or in opposition? What can courts do, and in particular what is the difference between issuing a stay, issuing a restraining order, and overturning an executive order?
Courts can issue a temporary restraining order or a more long-lasting preliminary injunction on an executive order to stop the EO from being implemented, either because it may be unconstitutional or because it may violate statutory authority (that is, a contrary act of Congress).
Once the question of the constitutional or statutory violation has been adjudicated, a court may overturn an EO if it is found to be unlawful or unconstitutional. If an EO is overturned, it may not be implemented in the same form going forward; however, a differently-drafted EO might still be able to accomplish some of the same goals if it is written in a way that avoids the statutory or constitutional problem presented in the order that was overturned.
Congress may overturn an executive order by passing legislation that invalidates it. However, the president has the power to veto legislation, so Congress might have to override a veto with a two-thirds majority to end an executive order.
Congress can also refuse to authorize necessary appropriations to provide the funding to agencies to implement the order.
Finally, what are the grounds for challenging Trump’s travel ban? Is discrimination in immigration law permissible? To put it differently: Is not all immigration law inherently discriminatory? If so, how could one challenge Trump’s executive order based on the idea that it is “discriminatory”?
The answer to this question is complicated—those who have ties to the United States have different claims under the constitution against discrimination than those who have not entered the country. Lawful Permanent Residents should have equal protection, due process, and first amendment protections under the Constitution; as a result, prior immigration action that discriminates based on national origin has typically not applied to citizens or LPRs (for example, The National Security Entry-Exit Registration System [NSEERS]).
Most law professors believe that the provisions of the EO that purport to apply to LPRs are the most easily challenged on constitutional grounds; now that those provisions are not being implemented, however, the question may be moot.
From another angle, the US is a party to the 1951 Geneva Convention on Refugees (known as the Refugee Convention) and has adopted implementing legislation to fulfill its obligations. The indefinite exclusion of Syrian refugees and the temporary suspension of all refugee processing would seem to be in violation of these obligations. Thus, refugees also represent a separate class of claimants. Moreover, this class should be divided into those who already had visas that were putatively invalidated by the EO, those in the process of being screened, and those who were planning to apply, with each category having hierarchically superior claims to the next (i.e., those with visas have the strongest claims, those in processing the next strongest, and potential applicants now foreclosed from applying the weakest but still arguably cognizable claims).
Refugees who have gone through resettlement processing and a two-year vetting process may have some constitutional rights, including due process and equal protection rights, though this theory is untested. One argument would be that the prolonged and extensive contact that such individuals have had with American officials during the period that they were screened and the statutory framework for refugee protections puts such individuals on a stronger footing to challenge national-origin-based exclusion once they had already been granted visas on the grounds that they had significant contacts with the US.
The constitutional claims for temporary visa holders—including students, tourists, and businesspeople on short-term (B) or medium-term (H-1B) visas—for equal protection or due process under the Constitution are much weaker, particularly at the border (that is, if they have not yet been admitted into the US).
With respect to all other classes of visa holders/applicants affected, there may still be two possible grounds of challenge based on discrimination: religious discrimination and national-origin-based discrimination. We take these up in turn.
Many commentators believe that the Establishment Clause of the Constitution prohibits an executive order that expressly relies on religious classifications. While this EO does not specify Islam or Muslims, it applies to Muslim-majority countries and expressly prioritizes refugees from minority religions, thereby imposing an implicit restriction on Muslims. Moreover, public endorsements of a “Muslim ban” by Trump during the campaign and subsequent comments by Rudy Giuliani that he and others were consulted as to how a “Muslim ban” could be crafted to withstand legal and constitutional scrutiny might also be treated as evidence of an intent to engage in religious discrimination.
Arguments concerning the impermissibility of national-origin based discrimination rest on statutory grounds. Whether the president has inherent authority under the Constitution over immigration, pursuant to the power to conduct foreign relations, is a contested question, since Congress has provided the relevant statutory framework for immigration. The Immigration and Naturalization Act (INA) may be deemed to circumscribe inherent executive authority in this area. In 1965, Congress passed legislation amending the INA to prohibit restrictions on immigration on the basis of national origin (such as the earlier Chinese exclusion act), abolishing the system of national-origin quotas. At least one immigration analyst has taken the position that as a consequence of the 1965 amendment, Trump’s national origin-based ban is unlawful.
But in 1952, Congress also delegated authority to deem any alien inadmissible, including one holding a valid visa, on national security grounds (out of anxiety about communism). Some might view this as a Congressional authorization for Trump to exclude on any grounds (religion or national origin) classes of aliens he deems threatening. Others may argue that national-origin-based exclusion was barred in 1965 and that Trump would need to specify narrower grounds than a complete exclusion of all nationals from a particular country
Less categorical forms of discrimination by national-origin, such as the requirements of additional screening for individuals from twenty-five designated countries under NSEERS, have clearly been deemed lawful by federal courts; the question is whether the specific form of discrimination that is a categorical national-origin based exclusion would withstand scrutiny, given the terms of the 1965 amendment. That question has not previously been posed and may now be litigated in district courts across the country.
The EO says that it draws its authority both from the constitution and from the Immigration and Naturalization Act, so if congressional grounds are deemed insufficient, the Trump administration might seek to invoke the primacy of the president in the conduct of foreign relations and argue that his views about who should be admissible from a national security perspective should preempt the conflicting views of Congress. This, too, would be a novel question that would have to be resolved by federal courts.
Incidentally, a Republican congress could at any point make clear that they do not object to this exercise of executive authority by providing an express delegation or by declaring that there is no conflict between the EO and the INA as amended. Moreover, it bears repeating that federal courts generally show great deference to the executive in the area of foreign relations and national security, particularly where Congress is not opposed to executive action
In this instance, such deference may be slightly less forthcoming because the EO appears to have been issued in a manner that courts might deem “arbitrary and capricious.” This might be due to the failure to go through the usual inter-agency process and because there is evidence in the public record to controvert administration claims that these seven countries represent a particularly acute threat, when in fact no foreign nationals from these countries have caused terrorism-related deaths on US territory to date. Thus the rational basis for concluding that admitting foreign nationals from these particular countries represents an acute threat may be difficult to establish.
The federal district court in Seattle that issued a nationwide temporary stay against enforcement of the EO cited, among other arguments, the arbitrariness of the order, in light of the absence of evidence that nationals of these particular countries as a class pose a distinct threat to public safety. On Thursday 9 February 2017, a three-judge panel from the Court of Appeals for the Ninth Circuit rejected 3-0 the Trump Administration’s request to set aside that temporary restraining order, also citing this as a factor. Since the Trump Administration is sure to appeal, it remains to be seen whether this argument against the travel ban will continue to hold.
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