Is The Trump Executive Order on Refugees Unlawful?

donald_trump_president-elect_portrait_croppedI previously discussed how President Donald Trump has the advantage in a constitutional challenge of this executive order suspending entry for refugees and imposing special limitations on seven stated countries.  As I have noted, this does not mean that there are not legitimate questions raised, particularly over the express preference to be given “religious minorities” under the order. However, the case laws heavily supports a president’s plenary power over such border controls.  There remains however a question over whether the law could be constitutional under a president’s inherent authority but still unlawful under statutory authority.  Most of that argument centers on the Immigration and Nationality Act of 1965, which bars discrimination based on nationality or place of origin.  There are clearly compelling arguments on both sides of this question, but once again I believe that critics may be overstating the 1965 law as making the executive order facially invalid.  As I have repeatedly stated since this executive order was signed, I believe it was a terrible mistake, poorly executed, and inimical to our values as a nation.  However, legal analysis by a court should not be influenced by such personal viewpoints.  The question is solely whether the president is barred statutorily from taking this action.

The federal law relevant to this question contains tension between provisions that grant sweeping authority to a president while at the same time limiting that authority with regard to certain types of discrimination.  As we previously discussed, the 1952 immigration laws states in Section 1182(f): “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”   That is obviously quite sweeping and supporting of the actions taken under this executive order.

However, in 1965 the Congress enacted the Immigration and Nationality Act of 1965. That laws was designed to end the quota system given numerical preference to certain European countries.  The  operative provision states “no person could 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.”  Congress exempted Cuban refugees but otherwise stated that no discrimination based on national or place of residence would be tolerated.

It is important to recognize what the 1965 law does not do. First, it does not apply to refugees and thus would not impact much of this order.  This deals with immigrants securing visas.  Second, the law does not ban discrimination based on religion.

The 1990 Act does include the following provision:

“An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.”

However, that provision refers to an individual alien being kept out due to their “beliefs” and allows an override by the Secretary of State.  The executive order is seeking a vetting process for individuals entering the country to isolate those with extreme or violent views.  Moreover, while I have always been critical of the practice, exclusion due to extreme views is a recognized practice in countries like England.  It is doubtful that Democrats would disagree that the Administration should bar entry of those individuals with violent pasts or violent beliefs.

Third, the law governs visas not later requirements of reporting or other conditions once immigrants are granted entry. Thus, President Carter signed out Iranian for special procedures and deported thousands of them.  Finally, and most importantly, the law was itself amended in 1996.  Congress expressly stated that “procedures” and “locations” for processing immigration applications cannot count as discrimination.  Thus, the Administration could argue that “vetting procedures” are exempted even for non-refugees.

With the exemption of green card holders among hundreds granted entry, the foot print for analysis under the 1965 language has been reduced further by the Administration.  Notably, the Office of Legal Counsel reviewed these laws and signed off on the legality of the executive order.  I expect it was due to these exemptions and the amendment.

That does not mean that there is not a compelling argument to make but it is not as facially clear as has been suggested.  Like the OLC, I would still give the advantage to the Administration.  However, this is clearly the best foundation for challenge.

Of course, that leaves a potential conflict between the statute and inherent president authority in a rehash of past cases like U.S. v. Curtiss-Wright.  In that opinion, the Court held:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

Presented with such a conflict, the provision could be narrowly construed.  Courts have long adopted interpretations that would avoid such conflicts.  If there is a narrow interpretation of the 1965 law that would avoid the conflict, it traditionally has been favored by federal courts.

The challenge to the order is also burdened by history.  If the 1965 law means what the ACLU has suggested, actions by presidents from Carter to Obama would be facially unconstitutional.  Presidents have routinely identified countries as raising threats requiring special procedures.  President Obama was among them.  There is no requirement that this can only be done in response to an attack or specific threat if the president finds a national security danger.  Courts are loathe to substitute their judgment on such questions for a president.

So where does all of that leave us?  It leaves us with a good-faith challenge to an executive order, but a challenge that will have to clear away a host of existing cases to prevail.  Could it happen?  Sure, but it is important not to overstate the authority in the area or allow passions to overcome analysis.  At most the 1965 law would be relevant to part of the order and even for that portion (on the seven identified countries) the Administration has strong arguments on the basis of inherent plenary authority and statutory exemptions.

 

 Updated column

69 thoughts on “Is The Trump Executive Order on Refugees Unlawful?

  1. There should have been more countries, every country our gov’t believe support terrorism and those who are
    sympathetic to this nonsense should be banned. Addionally, If that many people were out protesting the terractsorist acts in Ca and Fl they may not be having this problems especially those already here.

    • I know I am being prejudiced but I cannot buy anything from someone whose eyes I cannot see. That includes aviator sunglasses.

  2. I have a related question for others. It has come out that congressional staffers help craft this EO and that they were required to sign a nondisclosure agreement. Is that legal? I would think that anything done for the government (other than classified information) is open for public information and COULD NOT be restricted. I would love to hear input on this issue.

          • If you read my original question, you will see that I mentioned classified information. As far as I can surmise, none of this EO would have been classified. It has been made public. And my question is a general one. Are NDA’s legal for public government employees working on public government business?

        • Without knowing the details it would be impossible to say if the NDA is legal or illegal. If the NDA was for a sufficiently limited period of time, say until the Trump administration made the actual EO public, then it would be perfectly fine. The staffers simply would have been prohibited from disclosing the information while they were drafting the EO.

          And all NDAs are for a limited period of time. For instance, I’ve been bound to secrecy as a condition of acquiring my security clearance for 99 years. So I only have to wait another 70 years before I can write that tell all book you’ve all been waiting for.

  3. Can anyone direct me to the exact source where those 7 countries are listed?
    The executive order bases itself upon a previous Obama era decision but even in that one no country is specifically listed.

      • Thank you, Sqeek…I know where those countries are located on the map :), I am asking in which document they are specifically mentioned since the Obama document Trump’s order refers to does not mention them.

      • No, it’s not a do not visit list.

        https://www.cbp.gov/travel/international-visitors/visa-waiver-program/visa-waiver-program-improvement-and-terrorist-travel-prevention-act-faq

        “The U.S. Congress shares this concern, and on December 18, 2015, the President signed into law the Consolidated Appropriations Act 2016, which includes the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). The Act, among other things, establishes new eligibility requirements for travel under the VWP. These new eligibility requirements do not bar travel to the United States. Instead, a traveler who does not meet the requirements must obtain a visa for travel to the United States, which generally includes an in-person interview at a U.S. Embassy or Consulate.

        …Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:…

        These restrictions do not apply to VWP travelers whose presence in Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen was to perform military service in the armed forces of a program country, or in order to carry out official duties as a full-time employee of the government of a program country. We recommend those who have traveled to the seven countries listed above for military/official purposes bring with them appropriate documentation when traveling through a U.S. port of entry.”

        These countries were designated by countries of “special concern” because they are failed states or, in the case of Iran, a declared enemy of the United States. This under Obama. People can travel there, so characterizing this list of of seven countries as a “do not visit list” is just as inaccurate as characterizing Trump’s EO as a “Muslim Ban” or a “Travel Ban.”

        But anyway, there’s your list of the seven countries that raaacist white supremacist nazi pig Barack Obama singled out for special scrutiny.

    • http://www.slate.com/articles/news_and_politics/politics/2017/01/trump_s_executive_order_on_immigration_is_a_muslim_ban.html

      No principled person, looking at this record, would tolerate, much less defend, a Trump-initiated ban on migration from Muslim countries. The temporary character of the ban, the avoidance of explicit references to Islam or Christianity, and the omission of other Muslim countries don’t excuse the obvious animus behind the order.

      In every way, Trump has targeted Muslims as a class. He has rejected the distinction between Islam and radical Islam, since “you don’t know who is who.” He has assigned all Muslims the burden of proving they’re not radical, since “there’s no way to tell.” He has held all Muslims responsible for terror plots that go unreported. He has added rationales—Sharia, sexism, conversion—for excluding Muslims without regard to terrorism. He has proposed better treatment for persecuted Christians but not for persecuted Shiites. He has never conceded that a ban based on religion is wrong, nor has he retracted it. He has said his current approach is an expansion of it.

      • No doubt, SG, it is a Muslim ban by any other scheme…The only proper way to d it however would be to return the approximately 30% Muslim slaves they plucked out of Africa to bring to these shores.

      • No principled person relies on Slate as a source of information. No half-way informed person would fall for your mischaracterizations.

      • There is a distinction between moderate Muslims and radical Muslims. There is not distinction between moderate Islam or radical Islam. You simply haven’t read the sources. Here’s an unpleasant little short video by “The Masked Arab.” He’s masked an electronically changes his voice, as he’s an ex-Muslim an would rather live. There is no getting around the fact that Islam has a death penalty for apostasy. He’s an ex-Muslim because he decided he needed to learn more about his religion. This happens quite a bit. Muslims figure “Islamophobes” like me are just making things up about their prophet and their texts. Then they find out, we’re not.

        “Paedophilia & child marriage in Islam”

        Notice “Mr. Apologetic” who appears early in the video. He represents the moderate Muslim, who is simply forced to deny the texts say what they do. Or will deny that the authentic, canonical texts are authoritative.

        This will get you killed in Muslim majority countries, as it constitutes apostasy. There are two videos shortly after the 14 minute mark of Islamic scholars being interviewed about the Quran, Sharia, pedophilia and child marriage in Islam (spoiler alert: it’s not only allowed but encouraged). The more moderate interviewers are shocked; they can’t believe what they’re hearing. But in both cases the moderates obediently shut up because the clerics come down on them with their ultimate weapon. The Quran is the uncreated, eternal word of Allah. Are they saying Allah is wrong?

        There is no response to that if you want to remain a Muslim. And if you don’t want to remain a Muslim, especially in a Muslim majority country that practices strict Sharia, that means you don’t want to stay alive.

        Sunan Abu Dawud – Book of Prescribed Punishments (Kitab Al-Hudud) – (1)
        Chapter: Ruling on one who apostatizes:

        “‘Ikrimah said:
        ‘Ali burned some people who retreated from Islam. When Ibn ‘Abbas was informed of it, he said: If it had been I, I would not have burned them, for the Messenger of Allah (ﷺ) said: Do not inflict Allah’s punishment on anyone, but would have had killed them on account of the statement of the Messenger of Allah. The Apostle said: Kill those who change their religion. When ‘Ali was informed about it he said: How truly Ibn ‘Abbas said!

        Grade : Sahih (Al-Albani)
        Reference : Sunan Abi Dawud 4351
        In-book reference : Book 40, Hadith 1
        English translation : Book 39, Hadith 4337”

        Moderate Muslims will make things up and add it to the text. Something like, “This is really talking about treason, because in the early days of Islam when people left their religion they rejoined the Muslims’ enemies.” There is nothing in this text that supports that interpretation. But hey, whatever gets you through the night.

        I’d be fine with the people interviewing the clerics getting into the country; you can see the look of disgust on their faces. But not those clerics.

  4. “As I have repeatedly stated since this executive order was signed, I believe it was a terrible mistake, poorly executed, and inimical to our values as a nation.”

    How is it both inimical to our “values as a nation” but simultaneously legal in small part on the basis of past presidential use (Carter, Obama, etc.) and no court intrusion? We just keep making mistakes? Or is Trump the actual, true identity of the extremes of The Empire of USA, and not a bombastic leader in this fairy tale USA and supposed system of the rule-of-law you claim exists?

    Wouldn’t trust this blog for this answer…

    JT should stay on the animal farm…. Many activists in the Midwest would not wish to welcome him to the realities at play.

  5. The 1965 law is irrelevant. The 1965 law refers to “discrimination, which is the “unjust or prejudicial treatment of different categories of people.” There is no injustice no prejudice involved in vetting travelers to the United States to ensure that they do not have any terrorist involvement or connections. End of story.

    Of course, understanding this reality requires that you first understand what words like “discrimination” actually mean, and leftists are miserable at doing that, which is why they accuse anyone who disagrees with them as “racist,” “misogynist,” “xenophobic,” Islamophobic,” and “discriminatory.” Leftists apply those words mindlessly and always incorrectly and inappropriately. because stupidity is inculcated into what little remains of their conscious ability to reason.

    • No, this blog has a long record of spreading Islamophobia through many different avenues. Coded language and propaganda are a staple of the JT blog. Not to mention the fact that personal views become clear by simply looking at patterns over a period of time like say the headlines, and what is considered “news” for a “civil liberties” (hahahaha) blog. And a “public interest” law professor….

      • It’s impossible to spread “Islamophobia” as it doesn’t exist. It’s a nonsense word made up by fascists to be used by morons to silence cowards. It is primarily used by the Hamas-linked, unindicted co-conspirator, Muslim Brotherhood front group CAIR to try to either shut-up or failing that smear those who knowledgeably expose their jihadist ideology, which uses the Islamic sources as their primary and indeed sole motivation, and their goals.

        All those links between CAIR, Hamas, and since Hamas is just the Gazan wing of the ikhwan, the Muslim Brotherhood, were firmly established during the course of the Holy Land Foundation terror funding trial in 2008.

        As Judge Jorge Solis concludes in his order denying their petition to have the organization’s name stricken from the the public record. Which can be read here:

        http://www.clarionproject.org/news/holy-land-foundation-terror-financing-trial-documents

        Along with the judge’s order, the link will also provide you with the list of unindicted co-conspirators, and an explanatory memorandum on the strategic goals of the Muslim Brotherhood in North America.

        “Enablement of Islam in North America, meaning: establishing an effective and a stable Islamic Movement led by the Muslim Brotherhood which adopts Muslims’ causes domestically and globally, and which works to expand the observant Muslim base, aims at unifying and directing Muslims’ efforts, presents Islam as a civilization alternative, and supports the global Islamic State wherever it is…

        The process of settlement is a ‘Civilization-Jihadist Process’ with all the word means. The Ikhwan [Muslim Brotherhood] must understand that their work in America is a kind of grand jihad in eliminating and destroying the Western civilization from within and ‘sabotaging’ its miserable house by their hands and the hands of the believers…”

        The five defendants and the foundation itself were guilty on all counts (and there were over 100 counts).

        There is no such thing as Islamophobia. There is only informed and uninformed criticism of Islam, and there is a great deal to criticize. CAIR would have you believe that jihad just means struggle, as in an internal spiritual struggle. It can mean that, but you will never find it discussed in the Quran. Only violent military campaigns to kill or subjugate unbelievers are discussed. There are six canonical hadith collections in Sunni Islam; Sahih al Bukhari, Sahih Muslim, Sunan abu Dawud, Sunan an Nasa’i, Jamiat Tirmidhi, and Sunan ibn Majah (replaced by Muwatta Malik if your school of Sharia is Maliki). Each one has volumes on jihad. Again, only violent military campaigns are every discussed. Nothing is recorded about this internal spiritual struggle.

        The Shafii law manual (the other two schools of Sunni Sharia law are Hanbali and Hanafi) Umdat al Salik (The Reliance of the Traveler) has a section on jihad. There is half a page on the internal spiritual struggle. Followed by 12 pages on waging campaigns of violence against unbelievers.

        CAIR has been conducting a propaganda campaign designed to fool Americans into believing none of this exists since it was founded in 1992 at the behest of Hamas (the transcript of the teleconference was also presented at the HLF terror funding trial, the “Philly meeting”). CAIR invented the word Islamophobia because they noticed how well homophobia worked; call an American a name and most, especially liberals, run and hide under a table, cowering like a scared rabbit. They shut their eyes, and their minds. The last thing those Americans will do is read and think for themselves. They won’t even read what’s in the public record, established at a minimum by the preponderance of the evidence (although the evidence against CAIR is more compelling than that) in a court of law that demonstrates groups like CAIR and other Muslim Brotherhood front groups lie on a daily basis for the masters they serve.

        I get them impression it works as most Americans would rather believe their lies, even though they’ve been discredited multiple times.

        • Steve57:Thank you. Millions blindly line up in lockstep behind leaders on the left, lured into a bizarre love affair with this violent monstrosity, whose ideology is absolutely antithetical to democracy, known as Islam.

    • WELL SAID! This issue is clearly, from a non-lawyer point of view, easily problematical. It all seems to depend on which statue resonates with which person. Yet, common sense would suggest that this Seattle judge is not linking a new executive order to a new vetting process. Thus, subject to political partisanship.

  6. We are experiencing a tsimtsum, it is important now to protect our laws and freedoms and to protect others from threats to freedoms and exploitations of the weaker from the bigger, greedier. That is who we are. The rest of the World looks to us to continue on our path because they never achieved idealistically what we did. We don’t need to go backwards, we need to be strong enough to NOT buy into the fascist Pricktater shit that so many thugs find attractive.

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