The president’s March 6, 2017 Executive Order, which is unlikely to prove temporary, continues to raise legal and constitutional concerns
When President Trump signed Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” on January 27, 2017 (the “January 27 Order”), he exercised executive power to suspend the entry of all refugees and the entry of nationals of seven predominately Muslim countries in an unprecedented fashion that raised significant legal and constitutional concerns. Court challenges immediately followed, and a Temporary Restraining Order (TRO) from the Federal District Court in Washington State blocked the Order nationwide.
On March 6, 2017, the President regrouped and issued Executive Order 13780, which revokes and replaces the prior one as of March 16, 2017, (the “March 6 Order”). In the March 6 Order, President Trump claims broad power under 8 U.S.C. §1182(f) and 8 U.S.C. §1185(a) to close our borders to refugees and citizens of six Muslim-majority countries in a way that continues to raise similar legal and constitutional concerns.
As many know, the January 27 Order immediately suspended the U.S. Refugee Admissions program for at least 120 days, and suspended the admission of Syrian refugees indefinitely. The January 27 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 was undefined. The administration then issued guidance that the ban did not apply to those who already hold permanent legal status in the United States, and it also carved out an exception for Iraqi interpreters entering the U.S. on special immigrant visas, but the text of the January 27 Order remained the same.
The March 6 Order continues to suspend the refugee program for at least 120 days, but it no longer singles out Syrian refugees to be banned indefinitely. It continues to suspend the entry for at least 90 days of nationals from the same countries listed in the January 27 Order, with the exception of Iraq, which is no longer included in the ban.
The effective date of the March 6 Order is March 16. Nationals of the six designated countries who are outside the U.S. on March 16, who did not have a valid visa at 5 pm Eastern Standard on January 27, 2017 and do not have a valid visa on March 16 are subject to the suspension of entry. The suspension is subject to a number of exceptions for people with current visas, lawful permanent residents, people traveling on advanced parole, dual nationals who travel on the passport of a country not subject to suspension, and asylees and refugees previously admitted to the U.S. However, the language of the March 6 Order casts doubt on the validity of visas issued after January 27, 2017, and before the March 16, 2017 effective date.
The March 6 Order allows those from the banned countries to apply for a waiver of the ban on a case-by-case basis as a matter of discretion. To qualify for a waiver, the person must establish to the consular officer or border patrol officer’s satisfaction that not being allowed to enter the U.S. will cause “undue hardship,” that he or she does not present a security threat, and that entry is in the “national interest.” There is no indication in the Order of the process to apply for such a waiver. The Q&A issued on March 6 by the Department of Homeland Security states that eligibility will be determined when making the visa application through the Department of State. When the January 27 Order was in effect, the National Visa Center front-desked applications, and nationals of the banned countries who had visa interview dates at consulates were told that their interviews were cancelled. The January 27 Order also allowed for an officer to grant entry on a case-by-case basis if “in the national interest,” but in practice, there was no way to get in front of the officer to make one’s case. The March 6 Order appears to pose a similar problem.
Although framed as a “temporary” ban to allow the administration to put in place a program of “extreme vetting,” the January 27 Order and the March 6 Order are not designed to be temporary. Under the January 27 Order, the president would have issued a proclamation on April 27, 2017, listing the countries that had failed to provide the yet-to-be-determined additional information necessary for extreme vetting, and the ban on entry of nationals from these countries would remain in place until there was compliance. The March 6 Order similarly contemplates that 70 days from March 16 (May 25), the president will issue a proclamation regarding the countries that remain subject to the ban.
In February 2017, 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. Secretary Kelly also said that he did not believe that new countries would be added. However, by the terms of the March 6 Order, the list of countries can be expanded without notice to include the nationals of other countries. In addition, the 120-day ban on refugee entries can also be extended.
The January 27 Order carved out special preference for minority religions in the admittance of refugees—on a case-by-case basis, to be determined by the immigration officer. Appearing on the Christian Broadcasting Network on January 27, President Trump confirmed that priority is to be given to Christian refugees over Muslim refugees. The March 6 Order omits this specific preference, although the prior January 27 Order and President Trump’s statements remain as evidence of the general intent of the revised March 6 Order.
On February 3, 2017, the Federal District Court in the Western District of Washington granted a Temporary Restraining Order (TRO) to suspend the January 27 Order’s application nationwide, while the court determined its constitutionality. The administration appealed the TRO to the 9th Circuit Court of Appeals, which upheld it. The administration’s motion for an emergency stay was denied. On March 8, the administration’s unopposed motion to voluntarily dismiss the appeal was granted, and as a result, the January 27 Order is no longer in effect.
The March 6 Order goes into effect on March 16, revoking and replacing the January 27 Order. The new Order likely resets the table for new litigation to start. The state of Hawaii has already moved for a TRO on the March 6 Order, citing similar constitutional and statutory concerns as those raised by the prior Order. The states of Washington and Minnesota also appear ready to challenge the March 6 Order.
The Order’s stated purpose and its effect
The administration has stated in both the January 27 Order and March 6 Order that the Order was necessary in the name of national security. Its stated purpose is to “prevent infiltration by terrorists or criminals.” However, both orders install a ban that applies, in unprecedented fashion, across the board to millions of individuals who could not possibly be terrorists or criminals.
The government to date has cited no immediate event as the basis of the Order that supports its issuance. It could not cite one to the 9th Circuit Court, or any evidence at all, for why the ban was necessary. In the March 6 Order, the government cites as examples cases that lack a rational connection to the countries listed or to the refugee program. For instance, the March 6 Order cites to two Iraqi nationals who were sentenced for terrorism-related crimes, but Iraq is no longer on the list of banned countries. It also cites as an example a U.S. citizen who grew up in the United States and self-radicalized in the U.S., who was convicted of planning a terrorist act; the tenuous connection to this March 6 Order is that as a young child the person came as a refugee from Somalia. The administration’s own Department of Homeland Security intelligence unit (in a recent memo leaked on February 24, 2017) found that country of citizenship was an “unlikely indicator” for terrorist threats against the United States.
The March 6 Order has a 10-day notice period, not going into effect until March 16, 2017, likely to avoid the procedural chaos of the first Order, which played out in airports nationwide and internationally. Substantively, this second ban will likely have the same disruptive effect. The following Minnesota-specific examples illustrate difficulties created by the January 27 Order, which appear unchanged by the March 6 Order:
- Rochester-based Mayo Clinic 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 originally named countries. Iraq has been deleted from the list with the March 6 Order, but other than that, these patients, physicians and scholars face the same challenges and uncertainty of applying for a waiver of the ban on a case-by-case basis.
- The University of Minnesota (U of M) and Macalester College, mentioned in the Minnesota Attorney General’s lawsuit against the first Order, remain 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, as the March 6 Order and the DHS Q&A reflect that new visas and waivers will need to be applied for, if visas expire during the ban, which could likely be of infinite duration, depending on your country of nationality. By signaling to the best and the brightest that they are not welcome in the U.S., the Order has a significant immediate financial impact on higher education, because foreign students often pay full tuition, in addition to the long term economic impact.
- Minnesota families will be kept apart unnecessarily. Minnesota has a large population of U.S. citizens originally from Somalia, who have successfully petitioned for immediate family members to enter the U.S. Although these petitions have been approved by the Department of Homeland Security, under the terms of the March 6 Order, it does not seem likely that these family members, including elderly parents, spouses, and young sons and daughters, will be reunited with their U.S. citizen relatives in the foreseeable future, unless they are granted “undue hardship” waivers in the consular officer’s discretion, through a system that is unclear.
- Refugees who are fleeing governments based on persecution will likely be unable to come to the U.S. indefinitely, unless they can prove on a case-by-case basis that their entry is “in the national interest,” which is undefined and at the discretion of the immigration officer. The Order does not create any exception for young children. Under the January 27 Order, a four-year-old refugee from Somalia who was appropriately vetted, was originally not allowed on the plane to join the rest of her family here in Minneapolis, until the TRO was in place. The March Order does not provide significant relief from this type of situation.
Both the January 27 and the March 6 Orders are an unconstitutional overreach of executive power
More importantly than its ill-conceived implementation, President Trump’s January 27 and March 6 Orders are inconsistent with other immigration laws established by Congress and violate 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.” The March 6 Order also claims authority under section 8 U.S.C. §1185(a)(1), which requires that non-U.S. citizens enter and depart the U.S. in conformance with rules and regulations subject to limitations and exceptions prescribed by the president. These are broad powers, but they are 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 six 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.
Importantly, 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.” The March 6 Order does not change this history and the intent and effect of this new order is the same as the old one.
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.
Both Orders conflict with the INA’s anti-discrimination provisions and the due process clause
The president’s use of §1182(f) and §1185(a)(1) 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 six 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) or §1185(a), under the rules of statutory construction, Congress did not intend for the President to use §1182(f) or §1185(a) in a manner inconsistent with its prohibition on discrimination based on nationality, place of birth, or place of residence—which the January 27 Order did, and the March 6 Order, on its face, still 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”).
While the March 6 Order provides a waiver in section 3(c)(iv) for individuals seeking an immigrant visa, it imposes a new requirement of demonstrating “undue hardship” which is not present in §1152(a)(1), and which is not imposed on individuals from other countries. This additional imposition is itself necessarily discriminatory and not consistent with the language in §1152(a)(1).
Temporary visa holders also have due process rights under the 5th Amendment
International students, scholars, employees, and others legally in the U.S. from the banned countries who are on temporary visas 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.
While the March 6 Order attempts to address these rights, it has some clear blind spots, and it is also has the overall problem of not being supported by any rational basis, as outlined above. The due process rights of individuals with valid visas issued after January 27, 2017 and before March 16 also remain affected, although the administration attempts to address this in the Q&A. Even with the waiver provision, it will be difficult for students, scholars, and employees who are relatively new to the U.S. to gain entry under the ban, as the waiver section sets as examples of “undue hardship” cases where the person has long-standing contacts with the U.S., either through work or school. The March 6 Order and the Q&A also make clear that nationals of the banned countries will have to go through the waiver process to renew their visas to travel internationally, if they are in need of a new visa during the suspension period, even if they are currently in the U.S. on a valid visa. Accordingly, the March 6 Order does not address the affected employee or student lawfully in the U.S. who would like to travel internationally, but faces additional hurdles based on their country of nationality.
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 is important 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 January 27 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. The March 6 Order continues to target the same Muslim majority countries with the exception of Iraq, which was dropped for geopolitical reasons. Even though the Orders 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 Orders
The courts can and should consider evidence of intent to discriminate from outside the four corners of both Orders. 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 the January 27 Order and the March 6 Order has yet to be written. The January 27 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 January 27 Order.
The new March 6 Order attempts to address many of the due process objections raised by the 9th Circuit concerning the January 27 Order, but it does address all of them and it does nothing to address the violation of the establishment clause or the violation of § 1152(a). The new March 6 Order, by reducing the number of affected individuals, may make it more difficult as a practical matter to challenge in court. Nevertheless, we predict that affected individuals whose rights have been denied by this new version will challenge it. We will keep you updated as those cases proceed.
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.
 State of Washington v. Trump, Case No. C17-0141JLR, Order, at 4-5 (W.D. Wash. 2/3/2017).
 January 27 Order, Sections 5(a); 5(c).
 January 27 Order, Sections 3(c); 3(g).
 1/29/2017 Statement of Department of Homeland Security Secretary John Kelly. https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states
 March 6 Order, Section 6(a).
 March 6 Order, Section 2(c).
 March 6t Order, Section 14.
 March 6 Order, Section 3(a). It is unclear whether those who obtained a visa after January 27th but before March 16th are admissible without a “waiver.” The Order suggests that the valid visa must have been obtained prior to 5 pm Eastern on 1/27/2017, but the QA issued by DHS suggests that those with a valid visa issued prior to the effective date of the new order, 3/16/2017 at 12:01 am EST, are also admissible. https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-foreign-terrorist-entry-united-states
 March 6 Order, Section 3(b)(i)-(vi).
 March 6 Order, Sections 3(c); 6(c).
 QA from DHS regarding the March 6 Order, issued the same date – https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-foreign-terrorist-entry-united-states
 January 27 Order, Sections 3(g); 5(e).
 January 27 Order, Section 3(e).
 March 6 Order, Section 2(e).
 March 6 Order, Section 2(e).
 March 6 Order, Section 6(a).
 January 27 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).
 State of Hawaii v. Trump, Case No. 1:17-cv-00050-DKW-KTM (Hawaii 3/8/2017).
 January 27h Order, Section 3 (c).
 State of Washington v. Trump, No. 17-35105, Order, at 27 (9th Cir. 2/7/2017).
 March 6 Order, Section 1(h).
 March 6 Order, Section 1(f).
 March 6 Order, Section 1(h).
 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 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.
 March 6th Order, Section 3(c)(i) and 3(c)(ii).
March 6th Order, Section 3(a) and 3(b); DHS QA regarding the March 6th Order, of the same date. https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-foreign-terrorist-entry-united-states
 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).