When President Trump issued his first Executive Order (Order I) addressing immigration, on January 26, 2017, we explained that it banned the entry of immigrant and nonimmigrant citizens of seven countries, Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, into the United States for 90 days. As we noted, Order I also suspended all refugee admission into the United States for 120 days, and Syrian refugee admission indefinitely. It did permit exceptions, on a case-by-case basis, for refugees from religious minorities in those countries, while also providing that other countries may be added in the future.
Prompt legal action to the first Executive Order
The legal challenges began immediately, including lawsuits from the states of Washington and Minnesota. Pursuant to these suits, a federal court in Seattle, Washington, issued a nation-wide temporary restraining order (TRO) preventing the Government from enforcing Order I. We posted statements from the Department of Homeland Security, and the State Department, indicating that they would comply with the TRO, but also cautioning that President Trump vowed to appeal.
Indeed he did, but the Ninth Circuit Court of Appeals affirmed the lower court’s ruling. We summarized that decision, pointing out that the Ninth Circuit found that the Government had failed to provide any evidence of the need for the travel ban. Nor did the Government provide an adequate showing as to why the status quo could not remain in effect until a final decision in this case was made. Even so, the legal analysis for a TRO, which considers the risk of imminent harm, among other things, as explained below, is such that the court did not adjudicate the merits of the case.
More specifically, the Ninth Circuit agreed, unanimously, with the lower court that “significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States by means of an Executive Order that the States were likely to be able to prove was unlawful.” This was so, in part, because Order I had the effect of prioritizing entry on the basis of religion in violation of the Constitution
In its decision, the Ninth Circuit acknowledged that the President of the United States is entitled to great deference on “matters of immigration and national security.” Nonetheless, it recognized that the federal courts are fully authorized to review executive branch actions in this area to ensure the decisions’ constitutionality.
The second executive order
While the United States Supreme Court was short one justice, there was no further judicial action on Order I. However, during that time, President Trump issued a new executive order (Order II), on March 6, 2017, which was to take effect, and revoke Order I, on March 16, 2017.
Key differences between the two orders include the following:
- Iraq was on the list of banned countries in Order I. It was not in Order II, because, “Iraq presents a special case…the close cooperative relationship between the United States and the democratically elected Iraqi Government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq.”
- Travel of “refugees” remains suspended for 120 days, but Order II does not provide for the indefinite suspension of Syrian refugees’ admission into the United States.
- Order I’s language prioritizing the admission of religious minorities does not appear in Order II.
- Order II is limited in scope to three classes of people:
- Those who are outside the United States on the effective date of the order, March 6, 2017;
- Those who did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and
- Those who do not have a valid visa on the effective date of this order.
- Order II further specifically provides that suspension of entry does not apply to:
- Any lawful permanent resident of the United States;
- Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
- Any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
- Any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;
- Any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
- Any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Finally, Order II limits entry of refugees to 50,000 in fiscal year 2017.
Prompt legal action to the second Executive Order
In State of Hawai’i et al v. Trump, the state of Hawai’i, and an individual, Ismail Elshikh, Ph.D., the Imam of the Muslim Association of Hawai‘i, sued President Trump and various federal agencies, seeking the same relief that the plaintiffs in the first case did: a TRO prohibiting the Government from enforcing certain sections of Order II before it takes effect.
Declaring that Order II “is infected with the same legal problems as the first Order — undermining bedrock constitutional and statutory guarantees,” the plaintiffs allege particular harms that they will suffer: Order II “means that thousands of individuals across the United States and in Hawai‘i who have immediate family members living in the affected countries will now be unable to receive visits from those persons or to be reunited with them in the United States.”
They also maintain that “universities, employers, and other institutions throughout the United States and in Hawai‘i will be unable to recruit or to welcome qualified individuals from the six designated countries.”
Beyond this, they assert that Order II “threatens certain non citizens within the United States and in Hawai‘i with the possibility that they will be unable to travel abroad and return — for instance, because their visa only permits them one entry, or because their visa will have expired during the time the Executive Order is still in place.”
As to Dr. Elshikh, the complaint contends that Order II subjects his “family, and members of his Mosque, to discrimination and second-class treatment, in violation of both the Constitution and the Immigration and Nationality Act,” and denies them “their right to associate with family members overseas on the basis of their religion and national origin.” The result of this is “having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.”
These parties are especially vulnerable to the mandates of Order II because, according to the complaint, which cites the United States Census Bureau, “Hawai‘i is the nation’s most ethnically diverse State, and is home to more than 250,000 foreign-born residents. More than 100,000 of Hawaii’s foreign-born residents are non-citizens.” Dr. Elshikh, PhD, is an American citizen of Egyptian descent, has been a resident of Hawai‘i for over a decade, and is a leader within Hawaii’s Islamic community.
When the court granted the TRO on March 15, 2017, it once again did not consider the merits of the case. Instead, its duty was simply to determine whether the plaintiffs had met their burden under the TRO standard: proving that they are 1) likely to succeed on the merits; 2) likely to suffer irreparable harm in the absence of preliminary relief; 3) that the balance of equities tips in their favor; and 4) that an injunction is in the public interest.
The court justified its result for a number of reasons. First, it did not believe the Government’s claims that Order II is religion-neutral, despite the lack of any such language. Instead, the court asserted, “[t]he illogic of the Government’s contentions is palpable.”
In addition, “[e]qually flawed is the notion that [Order II] cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries.”
The court also looked at interviews and media reports in which President Trump, as a candidate, made many statements that, in the court’s view, “betray the Executive Order’s stated secular purpose” in violation of the Constitution.
For these and other reasons, the court opined that the plaintiffs had satisfied the first two elements of the TRO standard.
As for the third and fourth elements, the court declared that “[w]hen considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO….Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim.”
On March 30, 2017, the defendants filed their notice of appeal in the Ninth Circuit. A day later, they also filed a motion to expedite the case, which the court granted on April 3, 2017.
On May 15, 2017, the court will hear oral arguments, which, it should be noted, will only address the lower court’s grant of the plaintiffs’ TRO, not the merits of the case. One question that is likely to come up is whether, and/or the extent to which, a court may consider evidence contained in interviews, social media, and media reports, a novel issue that has not arisen in the context of executive orders before.
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