One year ago, the country was embroiled in a debate over whether President Trump could legally issue the executive order that has been referred to in the media as the “Muslim Ban.” According to the Ninth and Fourth Circuit Courts of Appeals in Spring 2017, he couldn’t. President Trump’s controversial executive orders have since kept the Justice Department busy defending a spate of litigation which seeks to prevent enforcement of these orders.
To fully understand the legal issues surrounding these executive orders, you need to know the following:
Trump is Not The First President To Bar Entry to Nationals Under the Immigration and Nationality Act
The Constitution gives Congress the exclusive power to regulate immigration. Congress delegated some authority to the President in the Immigration and Nationality Act (the “INA”). Under the INA, the president can issue an executive order that suspends the entry of aliens if the president finds that entry of these aliens would be detrimental to the U.S.’s interests.
President Trump is not the first to bar certain nationals from entering the U.S. under the INA. Carter banned entry of all Iran nationals in response to the Iranian Hostage Crisis as a way to pressure Iran to return the American hostages. Reagan banned entry of Cuban government officials, employees, and communist party members in an attempt to combat Cuba’s extremist communist regime. Clinton, George W. Bush, and Obama banned entry to participants in terrorism, trafficking, and conflicts which threatened war in other countries.
However, the INA does not grant the president unfettered power. It has limits. One of those limits is the INA’s prohibition of exclusion of aliens based on nationality alone. Another limit is the Establishment Clause of the U.S. Constitution, which prohibits the government from targeting particular religions.
The Travel Ban is Actually Four Separate Executive Orders, All of Which Have Been Legally Challenged
The executive order ruled upon by the Ninth and Fourth Circuits in Spring 2017 was President Trump’s second executive order on this topic, which he issued in March 2017 (“EO-2”). EO-2 was largely identical to the first executive order issued in January 2017 (“EO-1”). Although EO-1 was challenged and preliminary injunctions were granted prohibiting its enforcement, those lawsuits were mooted (i.e., nullified) by the issuance of EO-2 in March. Trump has since issued two more executive orders (EO-3 and EO-4), which are discussed below.
In May 2017, the Fourth Circuit Court of Appeals upheld an injunction prohibiting nationwide enforcement of EO-2 on the ground that the order violates the Establishment Clause. International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017). Two weeks later, the Ninth Circuit Court of Appeals upheld an injunction also prohibiting enforcement of EO-2 nationwide because it found that the executive order violated the INA. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017).
The Fourth Circuit: “The Travel Ban is a Muslim Ban”
In International Refugee Assistance Project, the Fourth Circuit found that President Trump’s EO-2 ran afoul of the Establishment Clause because it was clearly intended to discriminate against members of the Muslim religion. Constitutional challenges based on religious discrimination claims under immigration policies are generally granted more deference by the judiciary than other Establishment Clause challenges. See Kleindienst v. Mandel, 408 U.S. 753 (1972). When an immigration policy is involved, the government need only show a (1) facially legitimate and (2) bona fide reason for the exclusion.
President Trump banned entry of nationals from five countries on the basis of “national security concerns,” which the Fourth Circuit agreed was a facially legitimate basis. However, the Fourth Circuit did not agree that these “national security concerns” were the actual bona fide reason for the exclusion. Relying on President Trump’s many comments during his campaign about his desire to implement a “Muslim Ban,” the Fourth Circuit found that President Trump’s “national security concerns” were simply pretext for the religious purpose behind the order. The Fourth Circuit’s finding was supported by President Trump’s failure to consult national security agencies before issuing the order, by reports from the Department of Homeland Security in which the department stated that there was no evidence that individuals become radicalized based on their nationality alone, and by statements of senior intelligence officials who confirmed that there were no known pending national security risks from individuals of these countries as of January 2017.
The Ninth Circuit: “The Travel Ban Violates the INA”
In Hawaii v. Trump, the Ninth Circuit declined to address the Establishment Clause challenges. Instead, it found that President Trump’s executive order violated the INA because President Trump was unable to persuade the Court that he had found that entry of these nationals was detrimental to U.S. interests, as required by the INA. The order’s stated purposes for excluding the nationals and suspending the refugee admissions programs were to enable the U.S. government to review its admission policies and procedures. However, there was no evidence that these procedures are currently inadequate. In fact, there is already a law in place prohibiting nationals from Syria and Iraq (and any other terrorism sponsoring-country) from entering the U.S. without a visa. To get a visa, these individuals must undergo an individualized screening process. As for refugees, it currently takes about two years for a refugee to complete their “resettlement” process (i.e., get the okay to stay) because they are reviewed by seven different agencies, including the Departments of Homeland Security, State, and Defense. The Ninth Circuit also pointed to same reports and statements relied upon by the Fourth Circuit, in which the Department of Homeland Security and senior intelligence officials stated that there was no evidence that nationals from these countries, based solely on their nationality, posed any security risk to U.S. citizens.
The Ninth Circuit also did not buy President Trump’s explanation that allowing more than 50,000 refugees into the U.S. in 2017 would be detrimental to our interests. Under the INA, the president has to determine how many refugees we are going to accept each fiscal year. Obama already determined that 110,000 refugees should be accepted by the U.S. in 2017, and he made this determination after extensive consultation with various agency heads and Congress. Trump did not offer any explanation as to why Obama’s 110,000 figure was incorrect, or why the 50,0001st refugee would place our nation at risk.
Finally, the Ninth Circuit found that President Trump’s executive order ran afoul of the INA’s prohibition on discrimination against the issuance of visas based on nationality. In their briefing, the government argued that the executive order did not bar issuance of visas, just entry. But, at argument, the government admitted that the way they planned to bar entry was by not issuing visas. (Insert puzzled head scratch here).
The First Supreme Court Appeal
The United States Supreme Court granted certiorari on both of these decisions, and stayed enforcement of the Ninth and Fourth Circuit injunctions in June 2017. Oral argument was initially set in October 2017. However, during the pendency of the appeal, EO-2 expired by its own internal deadlines. Accordingly, oral argument was vacated and the Supreme Court issued an order on October 24, 2017 summarily disposing of the appeals as moot. Trump v. Hawaii, 138 S. Ct. 377 (October 24, 2017).
EO-3 Is Issued in September 2017, Spawning Another Round of Litigation and Appeals
In September 2017, while the appeals concerning EO-2 were pending before the Supreme Court, President Trump issued a “Presidential Proclamation” (EO-3) in which he replaced the portions of EO-2 relating to immigrants, but not refugees. EO-3 was again challenged in Maryland (Fourth Circuit) and Hawaii (Ninth Circuit), and preliminary injunctions were issued in October 2017 which blocked implementation of portions of EO-3. In Hawaii v. Trump (“Hawaii III”), the Ninth Circuit narrowed the scope of the injunction to give relief only to those immigrants with a “bona fide relationship” with the United States. Hawaii III, 2017 WL 6547095, at *26. The Maryland ruling is currently still on appeal before the Fourth Circuit. Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *1 (D. Md. Oct. 17, 2017). In December, the United States Supreme Court stayed both of these appeals.
EO-4 Will Be the Next Appeal To Watch
In October 2017, on the same day that EO-2 expired, President Trump issued a fourth executive order (EO-4) in which he stated that the suspension on refugee admission was no longer necessary, but that certain categories of refugees would continue to require enhanced risk assessment. On December 23, 2017, the federal district court for the western district of Washington issued a nationwide preliminary injunction enjoining implementation of EO-4 except for those refugees who lack a bona fide relationship with a person or entity in the United States. See John Doe, et al. v. Trump, 2017 WL 6551491 (W.D. Wash. Dec. 23, 2017).
The executive orders may have changed, but the arguments remain the same: Can President Trump issue these executive orders under either the INA or the Establishment Clause? This issue will most likely be addressed by the United States Supreme Court before the current term is over.