Federal Court Stays Executive Order On Refugees

donald_trump_president-elect_portrait_cropped gavel2Yesterday, I discussed the constitutionality of the executive order halting all refugee entries to the United States.  Late on Saturday, U.S. District Court Judge Ann Donnelly ruled in favor of a habeas corpus petition filed by the American Civil Liberties Union (ACLU).  The petition was brought on behalf of two Iraqi men detained at John F. Kennedy International Airport on Friday.  As I discussed on CNN after the ruling, this is decision to stay not to enjoin. The latter will require a showing by the ACLU that it is substantially likely to prevail on the merits, a tough standard to satisfy.  Judge Donnelly effective froze developments in the case pending a hearing on the case.

Donnelly’s order below is based on the finding that irreparable harm would befall the two men for any ruling on the merits could be issued. Donnelly, an Obama appointee, will now have chance to hear the merits in a likely expedited schedule.

Trump barred Syrian refugees indefinitely. It also stops the resettlement of all refugees for four months as the administration reviews the vetting process.  He also denied entry for 90 days for anyone coming from seven countries: Iraq, Iran, Somalia, Sudan, Syria, Libya and Yemen.


As I discussed earlier, Trump has the advantage on the existing precedent though his statements about favoring Christians will complicate the defense of the order.  Before his interview, Trump was maintaining that the law was not religious based.  Indeed, a federal court should not presume that this is a “Muslim rule” given the fact that many Muslim countries are not subject to the order barring entry.  Whatever the suspicions of the Court regarding the motivations behind the law, it is not a blanket bar on Muslims.  Trump’s comments however then inserted an express religious preference into the debate.  That will not be helpful but there remains considerable authority reaffirming executive power over the borders of the nation.
Here is the opinion: ACLU order

273 thoughts on “Federal Court Stays Executive Order On Refugees”

  1. Brooklyn Bridge,
    – It’s a common misperception that Afghanistan had a stable secular government prior to U.S. aid to the mujahideen.
    Prior to the Communist coup in 1979, the Daoud regime actually was the last period of real stability in Afghanistan.
    There was some resistance to Daoud’s secular, progressive regime….but there was not widespread revolt or warfare.
    When the Communist coup slaughtered Daoud, his family, and his
    aides, resistance against the new Communist government increases.
    That resistance, as well as the fact that the Communist leaders were killing each other off, is what prompted the Soviet invasion of 1979.
    The U.S. ratcheted up aid to the resistance, the mujahideen, in the early 1980s.
    The mujahideen were comprised of various faction, united in their opposition to the Communist regime.
    After the Soviets withdrew in 1989, the Communist government in Kabul lasted about 2 years.
    Once the shared objective of ousting the Communist regime had been met, the various factions in the mujahideen turned on each other.
    There was a multi-faceted civil war between these faction….The Taliban was actually formed in 1994, when the extremists took power.
    The Northern Alliance was not totally conquered by the Taliban.
    Substantial aid was given to the Taliban by Pakistan, in particular.
    Only 3 countries…..Pakistan, Saudi Arabia, and the U.A.E.- recognized the Taliban.
    The leader of the Northern Alliance, Massoud, was assassinated two days before the 9-11 attacks by Al Qaeda agents posing as reporters.
    He may have become a qualified, progressive leader in Afghanistan, based on what I’ve read about him.
    Afghanistan “fell off the radar” as far as news coverage, and American involvement as well.
    Unfortunately, the Pakistanis stayed very involved during the post-Communist civil war.
    The Taliban obviously gained a higher profile when they provided the base for Al Qaeada.
    While ELEMENTS OF the mujahideed eventually morphed into the Taliban in 1994, it is not true that the U.S. supported the Taliban itself.
    I’m still curious how application of international criminal law could be used effectively against ISIS at this point.
    c, 100,000 Iraqi and Shia miltia forces have been slowing pushing back ISIS since October, and it looks like that battle will continue for months to come.
    Those anti-ISIS forces are being supported by U.S. air power.
    Without “going back in time” and speculating about what could have been done, how the U.S. AT THIS POINT deal with ISIS absent large scale ( with allies) military action?
    I don’t see that the legal approach – the international law approach – could have worked in Afghanistan, either.

    1. Osama bin Laden was part of the Arab Mujahideen before the existence of the Talliban and various sources maintain that he did indeed receive considerable support from the CIA. The government denies it of course. They also insist Putin hacked the Clinton emails. They lie more often than a rug.

      To deal with ISIS today, one needs to address Saudia Arabia, Quatar, and Israel, all sources of support/funding for ISIS directly or indirectly. Trying to do this militarily would be insanity. It would require enormous courage just to bring out the involvement of these countries officially. Subsequently, assuming one was not impeached first, the issue would then have to be addressed by international tribunal.

      Not to worry. Both Trump and Bush have considerable financial interests involved in Saudia Arabia anyway and no one, Obama least of all, dares do anything that might involve confrontation of any sort with Israel.

      So for the time being, this boarder security ban that ignores the underlying core issue completely is largely symbolic.

      1. Brooklin Bridge,
        Bin Laden was indeed part of the mujahideen, as were tens of thousands of other Adghans fighting the Soviets.
        At that point, Bin Laden’s known ambitions were to drive the Soviets from Afghanistan.
        It would take evidence to show that Saudi
        Arabia, Quatar, and Israel are supporting ISIS.
        Even IF such evidence can be found to bring before an international tribunal, there is still the problem of militarily dismantaling ISIS.
        No court/ legal action can do that.

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