On January 27th, President Trump issued an executive order that could drastically change U.S. immigration standards and the lives of hundreds of thousands of people.
Titled "Protecting the Nation from Foreign Terrorist Entry into the United States," the order takes 4 major actions:
- Suspends the U.S. refugee admissions program for 120 days.
- Bans all refugees from Syria indefinitely.
- Limits the total number of refugees to 50,000 for fiscal year 2017, around half what it was under President Obama.
- Bans all travel from seven Muslim-majority countries for 90 days. Those countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
The order sparked protests across the country, particularly at major airports in which travelers from these countries were being detained.
On February 3rd, a federal judge in Washington issued a temporary restraining order (a "TRO") which effectively stops Trump's executive order in its tracks. While the TRO is in effect, the federal government may not enforce the ban on travelers from those seven countries or deny them visas based on the executive order. Government officials are complying, though the Trump administration is expected to appeal the decision.
Why is it important?
Among the many executive actions President Trump has signed so far, this is one of the most controversial. Here's why:
The order immediately affects hundreds of thousands of people—refugees, visa holders, green card holders and permanent residents, and even American citizens with dual citizenship from one of the banned countries.
The order calls up concerns about serious conflicts of interest, because it excludes countries in which President Trump has business dealings. There are other reasons these countries were excluded, but the unsolved problem of Trump's conflicts of interest continues to be a major issue for the country.
The order may violate the Constitution, on the grounds that it amounts to religious discrimination and that it prevents due process in some cases. It has been called a Muslim "ban"—a disputed term used repeatedly by Trump himself on Twitter. It may also violate immigration law (namely the 1965 Immigration and Nationality Act) and U.N. treaties for the same reasons.
Is this executive order legal?
This executive order violates both the Constitution and well-established immigration law.
First, it clearly disregards the Constitution—specifically the Establishment Clause, which the Supreme Court has interpreted to mean that "one religious denomination cannot be officially preferred over another." According to the legal director of the ACLU, David Cole, "if intended to disfavor a particular religion, it violates the Establishment Clause. Here, there is copious "smoking gun" evidence that the President intended to disfavor Muslims on the basis of their religion." This evidence includes statements from President Trump himself about his intent to prioritize Christian refugees.
Second, it ignores immigration law—in particular the 1965 Immigration and Nationality Act. The act says "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." At the very least, excluding all Syrian citizens violates this section of the law.
Finally, the order sits on a heap of shameful actions in American history that excluded Asian and African people—discriminatory orders that the Immigration and Nationality Act was specifically designed to outlaw. This order will not stand.
Like it or not, this executive order is legal.
The Immigration and Nationality Act of 1952 gives the president this power. The key provision reads: "Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." President Trump cites this passage in his executive order, and he's right to—it clearly gives him
A law professor recently cited in the New York Times, Professor Peter J. Spiro, found that the provision “gives the president capacious authority to deny entry to any alien or class of aliens. No court has ever reversed a presidential order under it.”
Critics say the order violates laws that prevent discrimination based on religion and nationality. But this order does not. It prioritizes religious minorities in these countries, but does not cite Christianity. It blocks certain Muslim-majority countries with ties to terrorism, but does not ban them based on their majority religion. It will not be struck down, because it is legal.
- The executive order itself, "Protecting the Nation from Foreign Terrorist Entry into the United States"
- "It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes."
- The New York Times' annotated and explained version of the immigration order
- "Most of the 19 hijackers on the planes that crashed into the World Trade Center, the Pentagon and a field in Shanksville, Pa., were from Saudi Arabia. The rest were from the United Arab Emirates, Egypt and Lebanon. None of those countries are on Mr. Trump’s visa ban list."
- The Guardian's piece laying out the effects of the order on immigrants
"A large share of the US population are immigrants: one in eight people (13% of the total population, 16% of all adults) was born abroad, according to the Census Bureau. But only a small fraction were born in countries affected by the temporary ban. As of 2012, there were 781,235 residents of the US who were born in countries affected by the ban — just 2% of all immigrants."
- Vox's explanation of the federal judge's temporary restraining order
- "Basically, in the words of immigration lawyer Greg Siskind, Judge Robart’s order "turns back the clock" — it restores the immigration system the US had on January 26, the day before the ban was signed. The reset may not last. The next hearing in the case could happen as soon as next week. But for the moment, after an extremely tumultuous week, President Trump’s ban has finally been restrained."