On the 27th of January 2017, Donald Trump signed an executive order (EO) titled “Protecting the Nation from Foreign Terrorist Entry into the United States”. The EO contains multiple controversial sections, including a 90-day ban on foreign nationals from seven-Muslim majority countries (with some exceptions), a 120-day ban on all refugees, an indefinite ban on all Syrian refugees, and a prioritization of refugee applicants whose religion is a minority religion in their country of nationality.
As of January 30th, according to numbers compiled by Customs and Border Protection (CBP) and as reported by the Daily Beast, the passing of this EO had caused 200-250 travelers at US airports to be denied entry after having flown to the United States on valid visas or green cards; as of February 2nd, according to CBP, 1222 travelers were denied from boarding flights for the United States (87 visa-holders were granted waivers); and as of February 3rd, according to a lawyer in the Justice Department, more than 100,000 visas had been revoked, although the State Department disputed that number and said that “only” 60,000 visas had been revoked.
The EO has engendered a swell of opposition to what has variously been described as an immigration ban, a refugee ban and a Muslim ban, including tens of thousands of people in multiple US cities who protested the ban, as well as the filing of dozens of lawsuits challenging the executive order on various grounds. As of February 3rd, a Seattle-based federal judge imposed a temporary restraining order on the EO, effectively suspending it, and on February 9th, the 9th Circuit Court of Appeals denied an emergency motion for a stay of the TRO filed by the Trump administration (essentially upholding the TRO). Given the level of opposition to the EO and the current legal battles being fought in courts across the US, the purpose of this article is to examine the order in detail, analyze some of its more controversial aspects and provide an up-to-date view of the latest legal developments.
1) Purpose of Executive Order
The ostensible purpose of this executive order is stated in Section 1 [italics mine]:
“The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage 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) or those who would oppress Americans of any race, gender, or sexual orientation”.
In reading this section, one is left with the impression that the existing visa-issuance process is in shambles and that the United States has been invaded by foreign-born terrorists. However, when we look at the statistics for terrorism-related deaths in the US by foreign-born terrorists over the past 40 years, a diametrically opposed picture emerges. According to the CATO institute (a libertarian-leaning think tank), between 1975 and 2015, 3024 people have been killed by foreign-born terrorists.
These statistics include 9/11, which is responsible for the vast majority of those deaths (2983 people were killed, excluding the 19 hijackers), and which indeed was committed by foreign-born terrorists on temporary visas (18 of the 19 9/11 hijackers entered on tourists visas; 1 was on a student visa). If we split this period between pre-9/11 and post-9/11 eras, then according to CATO:
“The period from 1975 to 2001 had only 17 murders committed by 16 foreign-born terrorists of a total of 64 who either tried or were successful in their attacks. During the same time period, 305 people were killed in terrorist attacks committed by native-born Americans and those with unknown nationalities […] From September 12, 2001, until December 31, 2015, 24 people were murdered on U.S. soil by a total of 5 foreign-born terrorists, while 65 other foreign-born terrorists attempted or committed attacks that did not result in fatalities. During the same period, 80 people were murdered in terrorist attacks committed by native-born Americans and those with unknown nationalities”.
It becomes clear then, that with the exception of 9/11, the number of deaths resulting from foreign-born terrorists is both low overall, and lower than terrorist attacks committed by American-born terrorists (both in the pre and post-9/11 eras). In fact, if we exclude 9/11 as a unique outlier, the annual chance of being killed by a foreign-born terrorist in the US is 1 in 250 million per year over the period 1975-2015 (those are about the odds of winning the Powerball lottery). In the period before 9/11, the odds are 1 in about 350 million per year, while the odds are 1 in 175 million in the period post-9/11 per year. Either way, these odds are extremely low. Even if we include 9/11 in the statistics, the odds of being killed by a foreign-born terrorist are 1 in 3.6 million per year (for those of you interested in the math, take the total number of deaths over the particular period of interest, for example 3024 deaths from 1975-2015, and divide that by the number of years in that period (40), and then again by the average number of people in the US over that period (around ~275 million)).
To put things in perspective, let’s take a look at lightning-strike data in the US:
“According to the NWS [National Weather Service] Storm Data, over the last 30 years (1986-2015) the U.S. has averaged 48 reported lightning fatalities per year. Only about 10% of people who are struck by lightning are killed, leaving 90% with various degrees of disability.”
This implies that about 480 people per year in the US were struck by lightning (10% of whom died) over the period 1986-2015 (this is likely an underestimate given that these are based on reported numbers). Assuming similar numbers between 1975 and 1985, about 19,000 people from 1975 to 2015 would have been struck by lightning. Comparing these numbers to deaths by foreign-born terrorists, Americans are about 6 times more likely (when including 9/11) and 450 times more likely (when excluding 9/11) to be struck by lightning than to die at the hands of a foreign-born terrorist.
To continue putting things in perspective, according to CATO, 768,000 people (including the 3024 killed by foreign-born terrorists) were murdered in the US between 1975 and 2015.
Comparing these numbers to deaths by foreign-born terrorists, Americans are more than 250 times more likely (when including 9/11) and about 15,000 times more likely (when excluding 9/11) to be murdered in the US than to die at the hands of a foreign-born terrorist.
Finally, for people worried about refugees (the topic of Section 5 of the executive order), according to CATO:
“Of the 3,252,493 refugees admitted from 1975 to the end of 2015, 20 were terrorists, which amounted to 0.00062 percent of the total. In other words, one terrorist entered as a refugee for every 162,625 refugees who were not terrorists. Refugees were not very successful at killing Americans in terrorist attacks. Of the 20, only three were successful in their attacks, killing a total of three people and imposing a total human cost of $45 million, or $13.84 per refugee visa issued. The three refugee terrorists were Cubans who committed their attacks in the 1970s and were admitted before the Refugee Act of 1980”.
Crunching the numbers, the odds of someone in the US being killed in a terrorist attack by a refugee are 1 in 3.6 billion per year over the period 1975 to 2015. Since the Refugee Act of 1980 was passed, not a single death in the US was the result of a terrorist attack by a refugee. In other words, the odds of someone in the US dying from a terrorist attack committed by a refugee since 1980 is literally 0.
2) The Travel Ban on Seven-Muslim Majority Countries
Section 3 of the executive order, titled “Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern”, states [italics mine]:
“(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order”.
I’ve highlighted sub-section 3(c) in italics since I intend to focus on this section. The purpose of this section is to impose a temporary 90-day ban into the US on all foreign nationals from seven Muslim-majority countries: Iran, Iraq, Syria, Sudan, Somalia, Yemen and Libya. Although these countries are not explicitly named in this section, they are implied by reference to the appropriate sections of the Immigration and Nationality Act (INA) in the executive order. To be clear, Section 217 (a)(12) of the Immigration and Nationality Act (INA), also referred to by its US code 8 U.S.C. 1187(a)(12), is a new section in the INA that was recently added after the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015” became law as part of the year-end spending bill President Obama signed on December 18, 2015. The purpose of this Act was to restrict the use of the visa-waiver program for certain nationals who traveled to Syria, Iran, Iraq and Sudan, although the list was expanded in February of 2016 to also include Libya, Yemen and Somalia. The visa waiver program “allows citizens of 38 (mostly European) countries to travel to the United States without first obtaining a visa“. The purpose of this Act, then, was to change the process by which citizens from these 38 countries, having traveled to any of the listed seven countries, obtained visas into the country (these citizens had to go through an interview process to now obtain visas into the US if they had traveled to the listed seven countries, whereas they didn’t need visas before the passing of the Act). As such, although it is true that the Obama administration had identified these seven countries as “countries of concern”, the Act of 2015 did not ban foreign nationals from these countries from entering into the US; only Trump’s executive order does that.
At any rate, before delving into the details of section 3(c) of the EO, it is important to first define the terms in this section. The term immigrant, according to its legal definition, refers to people who intend to permanently immigrate to the US; i.e. those who have green cards or lawful permanent residence. In contrast, non-immigrants are those who do not intend to stay in the US on a permanent basis, and include people such as students (on F1-visas for example), guest workers (on OPT or H1-B visas), tourists etc.
According to David Bier of the CATO institute, Trump’s ban targeting immigrants on the basis of their country of origin is illegal. Indeed, according to Bier, Section 202(a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):
“[…] 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”
This section of the INA does not cover the category of non-immigrants, but it does directly relate to immigrants (i.e. Green Card holders or permanent lawful residents). Despite that, acting Department of Homeland Security (DHS) spokeswoman Gillian Christensen said, on January 28 2017, that the executive order “will bar green card holders”, before a “senior administration official clarified […] that green card holders from the seven countries affected in the order who are currently outside the U.S. will need a case-by-case waiver to return to the U.S. […] Green card holders in the U.S. will have to meet with a consular officer before departing the country, the official said”.
This had the potential of impacting up to 500,000 lawful US residents from the seven countries listed above, before Donald F. McGahn II – Counsel to President Trump – “re-interpreted” this part of the executive order and issued a memo on February 1st 2017 exempting lawful permanent residents from the ban, which pundits called “highly unusual” and interpreted as a “face-saving way for the White House to redraft the executive order without incurring the embarrassment of actually having Trump sign a new executive order”. It is important to note, however, that despite this “re-interpretation”, the 9th Circuit Court of Appeals, within the context of the Trump administration’s challenge to the temporary restraining order issued on February 3rd (see section 4 below for details), has stated in their legal opinion (on p. 20-21) that the White House counsel is not empowered to issue an amendment superseding the EO; as such, it is not clear that this “re-interpretation” is legally binding:
“At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings”.
With regards to non-immigrants, the INA doesn’t provide the same protections as it does to immigrants. However, this does not mean that non-immigrants have no rights under the US constitution. Indeed, the 9th Circuit Court of Appeals has emphasized that:
“The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S.21, 33-34 (1982)”.
3) The Refugee Ban
Section 5 of the executive order, titled “Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017” states [italics mine]:
“(a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize 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. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement”.
Interpretation and “justification” of section 5(b)
I want to focus on section 5(b), which essentially states that refugee applicants claiming religious persecution will be prioritized “provided that the religion of the individual is a minority religion in the individual’s country of nationality”.
It is not clear how the ambiguous language of 5(b) is to be interpreted, specifically the words “minority religion” and “country of nationality”. Would section 5(b) apply, for example, to certain groups of Muslims who are being persecuted for their minority religious beliefs, such as Shia Muslims facing religious persecution in Sunni majority countries like Saudi Arabia and Sunni Muslims facing discrimination in Shia majority countries like Iran, or would the Trump administration argue that the Shia and Sunni categories are not religions but sects within Islam (and therefore, that intra-religious sectarian persecution does not qualify under 5(b)). Would section 5(b) apply to the Muslim Rohingya facing persecution in Buddhist-majority Myanmar, or would the Trump administration echo the claims made by the Myanmar government that the Rohingya’s country of origin is not Myanmar and that they are illicit foreigners from Muslim-majority Bangladesh (the Rohingya “are not regarded as one of the country’s [Myanmar] 135 official ethnic groups and are denied citizenship under Myanmar’s 1982 Citizenship Law, which effectively renders them stateless“)?
Regardless of how the language in 5(b) is to be generally interpreted, it is clear that at least in the particular case of Syrian refugees, the language of 5(b) was intended to prioritize Christian over Muslim refugees. Indeed, in an interview with Christian Broadcast News, Trump essentially stated that Syrian Christian (as opposed to Muslim) refugees would be prioritized in the refugee settlement process, in response to the interviewer’s question within the context of his executive order. Some conservative pundits such as David French from the National Review have attempted to justify this stance on Syrian refugees (if we read between the lines) by remarking that there seems to be a disparity in the number of Syrian Christian vs. Muslim Syrian refugees admitted into the US (Trump himself alludes to that in his interview). According to French:
“The Obama administration has resettled 13,210 Syrian refugees into the United States since the beginning of 2016 — an increase of 675 percent over the same 10-month period in 2015. Of those, 13,100 (99.1 percent) are Muslims — 12,966 Sunnis, 24 Shi’a, and 110 other Muslims — and 77 (0.5 percent) are Christians. Another 24 (0.18 percent) are Yazidis”.
The numbers quoted above seem to be correct, according to the Refugee Processing Center. The question is why have so few Syrian Christian refugees been admitted into the US? Is it because of discrimination, or for some other reason? French is correct in pointing out that around 10% of Syria’s pre-war population is Christian (at least according to the CIA World Factbook, which would put the number of Syrian Christians at around 2.1 million; according to the Pew Research Center, around 5.2% of Syria’s population is Christian, which translates to about 1.1 million), but that is not the right metric to use to adduce any alleged disparity in the number of Christian vs. Muslim Syrian refugees (and by extension, potential discrimination in the refugee process), as this does not reflect the number of registered Syrian Christian refugees.
Neither is it helpful to make the case for discrimination in the refugee process on the basis of the number of Christians who have fled Syria. The conservative news network CNSNews has claimed that “estimates of the number of Christians who have fled their country since 2011 vary, but the international Christian charity Barnabas Fund estimated some 600,000 earlier this year, the European Parliament said at least 700,000 had done so, and a Chaldean Catholic bishop from Aleppo last March put the figure at at least one million“. As tragic as these numbers are, they only reflect the number of Syrian Christians who have fled Syria, and not the number of registered Christian refugees (which is what is needed to make the case for religious disparity in numbers in the refugee process).
Indeed, the only correct metric to use to adduce disparity in Christian vs. Muslim Syrian refugees in the refugee process is to check the religious denomination of the registered Syrian refugees. According to Robert Farley of FactCheck.org:
“Chris Boian, a spokesman for the United Nations High Commissioner for Refugees, said “UNHCR staff simply does not discriminate.” Boian said decisions about how to prioritize refugees is based on the “basic human needs” of refugees, regardless of religion, nationality or race.
The reality, he said, is that far fewer Christian Syrians have applied for resettlement.
According to data supplied by the UNHCR, just 1.5 percent of the 1 million Syrian refugees in Lebanon are Christians; 0.2 percent of the 655,000 Syrian refugees in Jordan are Christians; 0.3 percent of the 228,000 Syrians refugees in Iraq are Christians; and 0.1 percent of the 115,000 Syrian refugees in Egypt are Christians. (In Turkey, where there are 2.7 million Syrian refugees, they do not record the religion of refugees.)
“We don’t fully know why there are fewer Christians requesting refugee status with UNHCR,” Boian said”.
So, regardless of how many Syrian Christians may have fled Syria, it seems that disproportionately few have registered as refugees with UNHCR (the United Nations High Commissioner for Refugees is the UN refugee agency). Given that the US refugee settlement program relies on UNHCR for refugee applications (indeed, UNHCR “identifies those refugees who are most in need of resettlement to a third country — typically more developed countries, further from conflict regions, such as the United States”), it seems that the reason that so few Syrian Christians have been admitted as refugees into the US is because so few have registered with UNHCR (and the admitted numbers into the US seem consistent with their registered numbers with UNHCR). The real question then (as Boian has pointed out), is why so few Syrian Christians have requested refugee status with UNHCR. This is an important question to investigate, and Farley’s article offers a few hypotheses, although there does not seem to be an obvious answer to this question as of now. Regardless, the right course of action is to investigate this issue in more detail, and not to address it through the unconstitutional language of section 5(b) – see below.
The legality of section 5(b)
Many pundits, such as Mark Joseph Stern of Slate and David Cole of Just Security, have remarked that this section is meant to prioritize Christian (and other non-Muslim) applicants claiming refugee status over Muslim applicants, and as such, is unconstitutional since it violates the Establishment Clause (in the First amendment of the US Constitution). Both Stern and Cole remark that:
“According to the Supreme Court, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 US. 228, 244 (1982)”.
Furthermore, Cole argues that “one of the critical questions with respect to the validity of executive action challenged under the Establishment Clause is its intent and effect; if intended to disfavor a particular religion, it violates the Establishment Clause”. In an earlier article, he provides several lines of evidence that demonstrate Trump’s anti-Muslim bias:
- On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
- In July 2016, he effectively admitted that his revamping of the proposal was designed to target Muslims without expressly saying so. In an interview on “Meet the Press: with NBC’s Chuck Todd,” Trump said he would target immigrants from certain countries, but resisted the suggestion that this was a retreat from his proposal to target Muslims. “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion… People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”
- In November 2015, Trump told NBC News he “would certainly implement” a database to track Muslims in the United States … “I would certainly implement that. Absolutely.” Would Muslims be legally required to register? “They have to be — they have to be,” Trump replied.
- In March 2016, Trump said, “Frankly, look, we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”
When this evidence is added to Trump’s previously discussed statement in the Christian Broadcast News interview, it seems quite clear that there is intent to favor one religion over another.
Finally, Cole makes the important point that even if Trump had not made his unconstitutional claim on TV (and therefore not revealed blatant intent), the distinction between majority and minority religion independently violates the principle of denominational neutrality:
“Moreover, even absent that evidence of Trump’s invidious intent, the order on its face favors refugees from “minority religions” over those from “majority religions” in any given country. That distinction independently violates the principle of denominational neutrality, even if in some countries it means we will be privileging Christians and in other countries Muslims. The law struck down in Larson v. Valente did not name any particular denominations, but simply imposed differential registration and reporting requirements on religions that received more than half of their total contributions from members, and those that did not. Even though the law did not single out a specific religion by name, it failed to treat all denominations the same, and therefore violated the Establishment Clause. Thus, even if Donald Trump hadn’t admitted his unconstitutional purpose on TV, the executive order would be unconstitutional”.
4) Legal challenges to executive order
Since the passing of the executive order, various lawsuits have been filed challenging the legality of the order on various grounds. In this section, we examine the major legal challenges that have ensued since the passing of the order.
ACLU lawsuit results in temporary stay against EO
The first major legal challenge to the executive order was “brought by the American Civil Liberties Union on behalf of two men [Hameed Khalid Darweesh and Haider Sameer Abdulkhalek Alshawi] detained at John F. Kennedy International Airport in New York City”. Judge Ann M. Donnelly, a federal judge in Brooklyn, issued an emergency stay on January 28th 2017, temporarily allowing people who had landed in the United States with a valid visa to remain (although the suit was filed on behalf of the two men, the temporary stay applied nationally). Her justification for issuing the temporary stay was based on her assessment that the executive order violated the claimants’ rights to Due Process and Equal Protection under the US constitution (see below).
Mark Joseph Stern provides some useful background for the basis of this ruling:
“The Fifth Amendment to the Constitution provides basic procedural guarantees to individuals detained in the U.S., prohibiting the government from depriving individuals of liberty without “due process of law.” Alshawi arrived in the country lawfully carrying the requisite documentation. Pursuant to the Immigration and Nationality Act, he now has a right to apply for asylum and have his claims processed by federal authorities. But the government did not do that. Instead, it instantly placed him in detention, without a hearing or any kind of judicial oversight, and barred him from speaking with his attorneys.
That is an unconstitutional deprivation of Alshawi’s liberty without due process of law. The federal government cannot indefinitely detain a lawful visitor without a hearing or any semblance of reasonable suspicion because the president signed an executive order. Nor, under the equal protection component of the amendment’s Due Process Clause, may the government discriminate against Alshawi because of his national origin or religion”.
Washington and Minnesota lawsuit results in temporary restraining order against EO
The next major challenge against the executive order was brought forward by Washington State and Minnesota. After hearing both sides, Seattle-based federal Judge James Robart, a George Bush nominee who was confirmed by the Senate in a 99-0 vote, issued a temporary restraining order (TRO), “targeting and effectively neutralizing all of the order’s main tenets, including its prohibition of entry from seven Muslim-majority nations. The judge also specifically blocked any preference for religious minorities in those countries, which have been widely interpreted as singling out Christian refugees for preferential treatment“.
According to Judge Robart:
“The proper legal standard for preliminary injunctive relief requires a party to demonstrate (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest”.
Robart’s conclusion was that the States are:
“[…] likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest”.
Although Robart does not discuss the details of item (1), he does explicitly discuss item (2) and claims that the “States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order”. The rationale behind this claim is summarized below:
1) Washington state and Minnesota residents were negatively impacted in areas of employment, education, business, family relations and freedom to travel.
2) Their harm extended to the States by virtue of the parens patriae legal doctrine (which is a “doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf”).
3) Direct harm to the States by virtue of the EO’s impact on the mission and operations of the States’ public universities as well as to the States’ tax base and public funds.
4) The TRO was extended beyond just Washington and Minnesota to the whole of the US by virtue of the view that immigration law should be applied uniformly (i.e. should be applied the same way everywhere in the US).
Motion for an Emergency Stay of the TRO – denied by 9th Cicuit Court of Appeals
Unsurprisingly, the Trump administration filed a notice of appeal against Robart’s ruling on February 4th, and requested an emergency motion for a stay of Robart’s TRO in the 9th Circuit Court of Appeals; the Court subsequently denied this motion by a vote of 3-0 on February 9th. The main argument presented by the Court to deny the stay was based on their assessment that the Trump administration was unlikely to succeed in their appeal on the merits of their case, specifically around the States’ Due Process claim. According to the Court:
“In the district court, the States argued that the Executive Order violates the procedural due process rights of various aliens in at least three independent ways. First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States”.
The Court essentially agreed that these due process claims had merit, and therefore that the Trump administration’s appeal was unlikely to be successful. The Court also expressed serious concern around the claims of religious discrimination in section 5(b), although “they reserved consideration of these claims until the merits of this appeal have been fully briefed”. A summary of the court’s rationale to deny the stay is presented below, but the complete ruling is worth reading in full.