On President Trump’s January 27, 2017 Executive Order Regarding Immigrants, Non-Immigrants, and Refugees
The practical implications, why it’s not likely to be temporary, and the legal and constitutional concerns it raises.
When President Trump signed Executive Order 13,769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” (the “Order”) on January 27, 2017, he exercised power under 8 U.S.C. §1182(f) in a way that raises significant legal and constitutional concerns.
As many know, the executive order immediately suspended the U.S. Refugee Admissions program for at least 120 days, and suspended the admission of Syrian refugees indefinitely. In section 3, the Order also suspended for at least 90 days the entry of all people “from” Libya, Iran, Iraq, Syria, Sudan, Somalia, and Yemen, including those already holding U.S. immigrant (green card) and non-immigrant (temporary) visas, except on a case-by-case basis “in the national interest,” which is undefined. The administration has since issued guidance that the ban does not apply to those who already hold permanent legal status in the United States, and it has also carved out an exception for Iraqi interpreters entering the U.S. on special immigrant visas, but the text of the Order remains the same.
Although framed as a “temporary” ban to allow the administration to put in place a program of “extreme vetting,” it was not designed to be temporary. Under section 3(e) of the Order, the president will issue a second proclamation on April 27, 2017, 90 days after the Order took effect, which will list the countries that have failed to provide information necessary for extreme vetting. Department of Homeland Security Secretary John Kelly testified to Congress that several of the countries are likely to stay on the list for an extended period of time, because they are unlikely to provide the information needed for extreme vetting. This new April proclamation could include new countries, although at the recent hearing, Kelly said he did not believe that new countries would be added. Even after the April 27 proclamation, the list of countries can be expanded without notice to include the nationals of other countries, according to the terms of the Order. In addition, the 120-day ban on refugee entries can also be extended.
The Order also carves out special preference for minority religions in the admittance of refugees—on a case-by-case basis, to be determined by the immigration officer. Order, Section 5(e). Appearing on the Christian Broadcasting Network on January 27, President Trump confirmed that priority is to be given to Christian refugees over Muslim refugees.
As of the date of submission of this article, the Federal District Court in the Western District of Washington has granted a Temporary Restraining Order (TRO) to suspend the Order’s application, while the court determines its constitutionality. The Trump administration appealed the TRO to the 9th Circuit, and a three-judge panel upheld the TRO. However, the 9th Circuit has requested briefing to determine whether the three-judge panel decision should be reviewed en banc. In a separate case challenging the Order, the District Court for Eastern District of Virginia issued a preliminary injunction on February 13, 2017, enjoining the enforcement of section 3(c) of the order for any person who has a Virginia residence, or is employed or attends an educational institution administrated by the Commonwealth of Virginia. By the time that this article goes to press, some decisions may have been made on the issues raised, or there may be a new Order in place. But no matter who is successful in these opening steps, litigation over these issues is likely to continue for the duration of the administration.
The Order’s stated purpose and its effect
The administration has stated that the Order was necessary in the name of national security. Its stated purpose is to “prevent infiltration by terrorists or criminals.” However, the ban applies, in unprecedented fashion, across the board to millions of individuals who could not possibly be terrorists or criminals, but rather have been vetted and approved for immigrant and non-immigrant visas. There was also no immediate event that the government could cite to the 9th Circuit Court, or any evidence at all, for why the ban was necessary.
The Order instead created unnecessary and unlawful chaos when it went out without notice and took immediate effect. The administration has acknowledged that the rollout was not well planned and “inconvenienced” people. Inconvenience hardly begins to describe it. Innocent travelers, who boarded planes to the U.S. with proper valid visas, found out mid-flight that the order barred their admission. People already vetted in an over two-year long process and granted refugee status were turned back; vetted family members were unnecessarily separated—including instances in which young children or the elderly were separated from their caregivers; outstanding researchers and scholars who had already been vetted—the “best and the brightest”—were denied entry; and returning green card holders were initially also detained as part of the ban.
If the Order is put back into effect, or rewritten, but keeps its central core, it would have the same disruptive effect. The following Minnesota-specific examples illustrate the ban’s effect here:
- Rochester-based Mayo Clinic has reported that the travel ban could prevent approximately 20 patients from receiving life-saving medical care not available in their home countries, and that approximately 80 physicians and scholars associated with the medical center have ties to the seven countries.
- The University of Minnesota (U of M) and Macalester College, mentioned in the Attorney General’s lawsuit, are also affected. Students and faculty feel they have no freedom of movement, and have no reasonable expectation of being able to return to the U.S. to continue their studies if they leave. By signaling to the best and the brightest to stay away from the U.S., the Order also has a significant financial impact on higher education, because foreign students often pay full tuition.
- Employers are not able to secure the talent that they need and want. For example, an Iranian engineer with a Master’s Degree from the U of M, who works at a major medical device company in Minnesota, may not be able to change or extend her status in the U.S., or obtain approval of a permanent resident (green card) application, because of the ban.
- Minnesota families are kept apart unnecessarily. For example, a U.S. citizen in Minneapolis was unable to welcome his Somali wife and three-year-old son to the U.S., even though wife and child had immigrant visas permitting entry to the U.S. and automatic acquisition of permanent residence (green card status). The wife and child were not even allowed to board the plane to come to the U.S. because of the ban.
- Refugees who have been vetted are unnecessarily excluded. For example, a four-year-old refugee from Somalia would have been swept up on the order and not allowed to join the rest of her family here in Minneapolis.
The Order is an unconstitutional overreach of executive power
More importantly than its ill-conceived implementation, President Trump’s Order is inconsistent with other immigration laws established by Congress and violates the U.S. Constitution. The Immigration and Nationality Act (INA) in 8 U.S.C. §1182(f) allows the president to suspend the entry of people or groups when he finds that entry of those people or groups “would be detrimental to the interests of the United States.” This is a broad power, but it is not without constitutional constraints.
No president has ever used § 1182(f) to institute a broad ban across the board on the entry of all citizens of seven countries and all refugees. Presidents, instead, have used it with much greater care and consideration for the countervailing statutory and constitutional issues involved. President Reagan invoked 1182(f) to suspend the entry of Cuban nationals to the U.S., in direct response to Cuba having suspending outbound migration, and Reagan’s order had several broad categorical exceptions that are not present here. The other oft-cited example for the president’s power under this provision is Executive Order 12807, which instructed the Coast Guard to return undocumented Haitians caught on the high seas who had not yet reached U.S. waters back to Haiti—another specific response to a specific concern.
No U.S. president prior to President Trump has ever publicly called for a Muslim ban, and then, in his first week of office, issued an Executive Order that suspends admission for nationals of seven Muslim majority countries and reframes the U.S. Refugee program to favor one religion (Christianity) over another (Muslim). Further, presidential advisors have appeared on national television and in recent Congressional testimony, explaining that targeting these countries was how to make the Muslim ban “legal.”
Because the Order touches upon Congress’s Article I Section 8 power to set immigration laws and policy, President Trump’s Order must be consistent with Congress’s delegated authority in §1182(f). If President Trump has used §1182(f) inconsistently with other Congressional immigration laws and the U.S. Constitution, then his power is at the “lowest ebb.”
Courts can review these types of Orders
The Executive Branch’s claim that these types of Orders are not subject to judicial review is incorrect as a matter of law. While courts have generally recognized that Congress and the Executive have broad discretion in the realm of immigration, courts have not found that these actions were beyond judicial review. While non-U.S. citizens who have never been to the United States have been found not to have a constitutional claim when denied admission, U.S. citizens, lawful permanent residents (LPRs), people in the U.S., and people with the right to return to the U.S. may seek judicial review of Orders that violate their rights.
The Order conflicts with the INA’s anti-discrimination provisions and the due process clause
The President’s use of §1182(f) here directly conflicts with the antidiscrimination provisions established by Congress in the Immigration and Nationality Act, since the Order seeks to ban the issuance of immigrant visas for nationals of the seven named countries. Congress has made clear regarding the issuance of immigrant visas that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s… nationality, place of birth, or place of residence.” Congress listed specific exceptions to §1152(a)(1)’s anti-discrimination prohibition and did not list §1182(f) (President Trump’s basis for the Order). Because Congress drafted §1152(a)(1) after §1182(f), under the rules of statutory construction, Congress did not intend for the President to use §1182(f) in a manner inconsistent with its prohibition on discrimination based on nationality, place of birth, or place of residence—which this Order, on its face, does.
In prohibiting discrimination in the issuance of immigrant visas, Congress protected the constitutional equal protection and due process rights of U.S. citizens and U.S. LPRs, as well as the individuals to whom the immigrant visas would be issued. In Section 8 U.S.C. §1153(a), Congress created a system that enabled U.S. citizens and LPRs to sponsor their close relatives. U.S. citizens and LPRs are likely to have family members of the same nationality or place of birth as their own. An action that prevents U.S. citizens and LPRs from sponsoring relatives solely based on their nationality or place of birth, such as the Order, impinges on the rights of the U.S. citizen and LPRs in violation of § 1152(a)(1) as well as the constitutionally protected rights of family unity. See Bustamonte v. Mukasey (“Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause”).
Temporary visa holders also have due process rights under the 5th Amendment
International students, scholars, employees, and others legally in the U.S. on temporary visas from the banned countries have a claim that the Order deprives them of the ability to travel outside the United States without due process under the 5th Amendment. All persons in the United States, without regard to immigration status, have due process rights under the 5th Amendment. Non-immigrants, such as students, are not considered to have a protected due process property right in their visa, and so, in a case challenging the Order, the Massachusetts Federal District Court did not find that the students had a reasonable chance of success on their due process claim. In its focus on property interests, the court in that case misses the issue. As the 9th Circuit correctly held, it is not about a property right, but instead whether the person’s 5th Amendment protected liberty interest (freedom to travel) has been impacted by the Order without due process.
The freedom to travel is not insubstantial. The best and the brightest from other countries come to the United States to study, teach, and research, and work in important fields including health and business. This freedom to travel in and out of the U.S. for these important temporary visa holders, who have been vetted and granted visas, is key to the economic and social welfare of our state and nation.
In the State of Washington case, Minnesota and Washington have asserted an important and central constitutional challenge to the Order, stating that it violated the establishment clause of the 1st Amendment and the equal protection clause, because statements by President Trump and his advisors indicate that the Order is intended to disfavor Muslims. Even though the Order might appear to be facially neutral on religion, it must be invalidated if the intent has the effect of favoring one or more religions (e.g. non-Muslim faiths) over another (e.g. Muslims). Additionally, there is a related equal protection challenge to the Order on the basis that discrimination against Muslims was a motivating factor for its issuance.
Looking beyond the four corners of the Order
The courts can and should consider evidence of intent to discriminate from outside the four corners of the Order in this case. The Justice Department has cited precedents holding that inquiry beyond the face of the Order is improper, because the president has provided a facially legitimate and bona fide reason for it. The Administration has not provided a facially legitimate and bona fide reason for this broad exercise of authority, but in any event, in Kerry v. Din, Justices Kennedy and Alito recognized that “an affirmative showing of bad faith” on the part of the government official would be sufficient to look behind the facially legitimate and bona fide reason set out by the Court in Kleindienst. Given the public statements by the President and his advisors, an inquiry into the intent behind any stated reason is warranted here.
The last legal chapter on this Order has yet to be written. In the initial steps, the Order has been blocked because at this initial stage, the states of Minnesota and Washington have demonstrated that they have a substantial chance of success on the merits of their legal and constitutional objections to the Order. Hearings in the district court for a preliminary injunction are set to begin soon, and we will endeavor to keep you updated.
CAROLINE OSTROM is the chair of the American Immigration Lawyers Association—Minnesota and Dakotas Chapter and an Attorney at Ostrom & Peterson, LLC.
GEORGE C. MAXWELL is the secretary of the American Immigration Lawyers Association—Minnesota and Dakotas Chapter and an Attorney at Borene Law Firm P.A.
 Order, Sections 5(a); 5(c).
 Order, Section 3(f).
 Order at Section 5(a).
 Order, Section 5(e).
 “Trump plans to give persecuted Christians priority refugee status,” Washington Examiner 1/27/2017 http://www.washingtonexaminer.com/trump-plans-to-give-persecuted-christians-priority-refugee-status/article/2613193
 State of Washington v. Trump, Case No. C17-0141JLR, Order, at 4-5 (W.D. Wash. 2/3/2017).
 Aziz et. al. v. Trump, Case No. 1:17-cv-116(LMB/TCB), Order, at 1 (E.D. Va. 2/13/2017).
 Order, Section 3 (c).
 State of Washington v. Trump, No. 17-35105, Order, at 27 (9th Cir. 2/7/2017).
 8 U.S.C. 1182(f).
 See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (the power of the other branches over immigration “is subject to important constitutional constraints); Boumediene v. Bush, 553 US 723, 765 (2008) (the “political branches” lack “the power to switch the Constitution on or off at will”).
 See Pres. Procl. 5517 (8/22/1986) (did not apply to family-based immigrant petitions, special immigrant visas or Cubans who had been outside Cuba a year).
 See Sale v. Haitian Centers Council, Inc. 509 U.S. 155, 160 (1993).
 “Rudy Giuliani says Trump asked him how to make a ‘Muslim ban’ legal,” Quartz Media 1/29/2017 https://qz.com/897616/rudy-giuliani-says-donald-trump-asked-how-to-make-a-muslim-ban-legal/ ; At of the House Committee on Homeland Security in the Committee Hearing for Department of Homeland Security Secretary John Kelly, Chairman McCaul stated, “Let me say first, I agree with the policy of the Executive Order. It is consistent with a memo I drafted to then Candidate Trump with Mayor Giuliani and Attorney General Casey advocating a shift from a Muslim Ban, which he was campaigning on, which we thought was unconstitutional, to rather an enhanced vetting process of immigrants and refugees based on risk, not religion, from high threat areas.” See 17.58 minute mark of full transcript of committee meeting at https://www.c-span.org/video/?423321-1/homeland-security-secretary-john-kelly-testifies-us-border-security.
 See Kleindienst v. Mandel, 408 U.S. 753, 766 (1972).
 Youngstown Steel and Tube v. Sawyer, 343 U.S. 579, 635-638 (1952) (Jackson J. Concurring).
 See e.g., Kerry v. Din, 135 S.Ct. 2128 (2015); Boumediene, 553 US at 765; State of Washington, No. 17-35105, Order, at 13-18.
 Din at 2131.
 See e.g. Din at 2131; Boumediene, 553 US at 765; State of Washington, No. 17-35105, Order, at 13-18.
 8 U.S.C. §1152(a)(1).
 Bustamonte v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008).
 This precedent was undisturbed in this regard by Kerry v. Din, 135 S.Ct. 2128 (2015), because five justices did not reach the question of “whether a citizen has a protected liberty interest in the visa application of her alien spouse.” Id. at 2139 (Kennedy, J., concurring)).
 Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
 Louhghalam v. Trump, Civ. Action No. 17-10154 NMG, at 15 (Memorandum and Order Feb. 3, 2017).
 See State of Washington, No. 17-35105, Order, at 19-20.
 See Larson v. Valente, 456 U.S. 228, 244 (1982).
 See Romer v. Evans, 517 U.S. 620, 632 (1996).
 See Kleindienst, 408 U.S. at 770.
 Din, 135 S.Ct. at 2141 (Kennedy J. Concurring).