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. Check out the Sessions confirmation hearings. Sessions has been applauded by Republican Senators primarily on the “I have known him for a long time and he is a great guy.” Hardly any examples of his performance have been offered by his Republican backers. The Democrat Senators, who object to him, all presented many, many, many, examples of Sessions’s actions taken against the Constitution, against the majority of Republicans, as well as Democrats, against the general well being of all Americans, etc.”

    It goes without saying that the Attorney General is appointed by the President and confirmed by the Senate but is accountable to the law, Constitution, people, before the President. The key ingredient of a worthy Attorney General is the ability to stand up to anyone, including the President, when that Attorney General believes that the laws, Constitution, and people are not being served.

    Sessions has proven, being a mentor to DDT as well as a chief architect of the ‘Ban on Muslims’ recent moves honoring campaign promises, that he is a tool of DDT and accountable to the President and not the Constitution, laws of the country, and the people. Sessions has continually voiced his biased opinions which in the majority run against decisions made by the Supreme Court, proposals in the Senate supported by a bi-partisan majority, and just plain ethical and moral grounds.

    Sessions is a worthless tool of DDT.

  2. There may be some not very nice Muslims in the world but you cannot blame them for our Greed anymore than Jews were responsible for the Greedy destabled economy in Europe. Quit kicking the puppy. Trump runs profit based businesses and that is what his mind will always migrate to. He is freeing up profit based money streams and he is endangering people and the planet to do so.

  3. Wow, Squeeky, I’m appalled that I understand and align with you on those thoughts….it’s just that, who willingly will follow a bullying thug? And how can anyone REALLY trust a Trump? Like for instance…all those threats may be real but he won’t even come clean on his taxes…plus, are the bans really about terrorism? or just the unrulies that won’t kowtow to the financial elite? Where are the mention of the causitors ? Why no Saudies? It’s really just a ‘he’s my buddy with bucks and they don’t play nice’ kinda thing isn’t it? On Uberroids. Plus…the whole distastefull Russian mob thing…..really, hindsight is not the only sight involved ;P

    1. I am not sure why Trump’s personality is a factor in what should be a common sense exercise in national security. My goodness, but if you personality factors are an issue for you, where were you:

      1. When JFK was screwing commie secret agents in the White House, and engaging in threesomes with Fiddle and Faddle;

      2. When LBJ was whipping out his weeny and whizzing in front of female staff, or holding meetings, in person, while he was sitting on the pot taking a poop, and other gross things;

      3. When Bill Clinton was doing the pizza girl in the Oval Office, and using cigars in ways not consistent with their intended use;

      4. When you probably voted for Obama, a heavy marijuana smoker, with all those attendant mental issues.

      Squeeky Fromm
      Girl Reporter

      1. Obama is a heavy pot smoker???? Are you DELUDED????????? or just a frank liar???? Oooooor, why hasn’t this been made known b4, I NEVER heard this b4, lol!!!!!!!! Damn, now I have to take up smoking pot bcuz I think he is one of the most elegant, honest, humane and ethical Presidents we have ever had. Why the Rethuglicans cut him off at the knees was so obviously driven by sub-conscious (or not) rascism that it was a s painful to watch as watching a teenager cut themself because they can’t deal with emotional turmoil. But as for the rest, 1)Who is Fiddle and Faddle and does that mean my fav snack is named cuz of a subliminal market ploy? I was pretty damm young….I remember where I was when he was shot…and I was pretty damm young then too…in front of the tv.
        2)Why are you so obsessed with male politicians sexual members???? Not to mention the scat…..
        3) I smoked a cigar once…it was pretty good but it was a slender sweetie and not one of those portulant stinkers ;P I like pizza but I don’t eat girls….but still, it sounds consensual….meh
        4)again, my Obama smoked POT?????? you got proof there missy? proof is important when making accusations and a law degree does not make you 007 or even 99…. and if it is a shield for slander then I’m with Shakespeare 😉

        1. Google Fiddle and Faddle. Google “Choom Gang.”

          As far as Obama being “elegant” – – – I would pick some more appropriate descriptors, like “aloof, passive-aggressive, oblivious, set in his ways”, etc.

          I think this his various dysfunctions were a result of his quasi-commie upbringing, his relatively young age, his choice of political hack advisers. . . but most of all to his malignant narcissism and his belief that he is far superior, morally and intellectually, to all those common folk, those bitter clingers. That part of it is endemic to the Democratic Left. So much so, that they can not see the reality around them. The “bubble.”

          It borders on complete solipsism, to the effect you get “I am a college-educated person, and I like diversity and gays and women’s rights, and therefore that Muslim over there in Syria is just like me, and will like diversity and gays and women’s rights, too! And even Jews!”

          Sooo, you have a “Diverse-ite” who believes in the God of Diversity, who seeks out another person to complete the diversity, but that other person thinks diversity is silly! And that queers should be heaved off buildings or stoned! And women oppressed. So what do you get when they bring the “other” to them? See Nice.

          But luckily, Deplorables get to vote, too!

          Squeeky Frommj
          Girl Reporter

          1. I can get you the number of a professional if you feel the need to further vent your hostile judgements.
            As for the many adjectives you chose regarding President Obama….you sound like an ex-wife (talk about yer personals…..)

            There is absolutely nothing wrong with being nice. In fact I think a little more ‘Nice’ in the world would be lovely. Id rather ‘nice’ than terrorist or even hostile and aggressive.

            But, if you are allergic to nice does that mean you support that other Nasty woman???? You know, ‘What’s her name …..;P

  4. Sooo, here is a thought question:

    Knowing what we know now, would you have advised President Kennedy to drive through Dallas in an open topped vehicle?

    This is not a trick question, because most people can make pretty accurate judgements in hindsight. Excluding, of course, Jeb Bush who was a little slow on the whole “there weren’t no weapons of mass destruction in Iraq” thing. Hindsight gives one the advantage of knowing how something turned out, and thus is about as simple as “if you then what you know now, that the roulette ball was going to land on black 26, would you have bet on black 26” – – – DUH!

    With all that in mind, do we not have something very close to “hindsight” if we look at what has happened in Europe with their liberal Muslim immigration/refugee policies? Malmo, Sweden is now the rape capital of Europe. Pedophilia is rampant in Great Britain. Vast areas in France and Britain have become dead zones to Western values. And overall, the possibility of a terror attack looms over the whole area.

    Knowing that, how in the name of anything sane, can people be all gung ho to let in Muslim immigrants/refugees into our country. Are they daft? And what is all this “American values” nonsense? Has suicide become the new American value?

    Squeeky Fromm
    Girl Reporter

  5. The 1965 Act does not mention religion, but how about the 1990 Immigration Act:

    “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.”

  6. What DDT did may be legal and probably is. The Presidency is one part of the administration that is responsible for safeguarding the nation and its people. However, it is blatantly obvious that the way DDT performed this service had a greater ulterior motive(s). DDT could have easily picked up the phone and directed the departments responsible for border security, immigration, etc. to tighten up to the tune of what he did with much bravado and bluster. The way DDT went about this illustrates that he is overly concerned with his expression of power or insecure, that he is still pandering to the angry mob that helped elect him and campaigning for the elections in two and then four years, and/or that he is ‘off the beam’.

    DDT has yet to stop his tirades and expressions of megalomania. There was no need, whatsoever, for DDT to go about securing the borders in the way that he did. A lot of travesties are done that are legal.

  7. Once the Fool put a religious aspect into the ban and favoring Christians. The ban became unconstitutional.

  8. Firstly, Thanks to JT for his expertise and wisdom. I think he will be making many posts about this President. Hopefully Trump doesn’t tweet about JT!

    Egypt is the largest country in the Middle East and there is no ban on Egyptians. Indonesia is the largest Muslim country, again no ban. The ban is on those from where known terrorists have originated.

    1. Agreed, Nick. I’ve also observed that the majority-Muslim countries that were excluded are those with relatively stable, friendly governments. These are generally allies that can be depended on (with some reservations) to properly vet their own citizens and vouch for their real identities.

      1. Wonderer,
        That’s a good point….most of the countries affected by the Executive Order are in upheaval, and a dre could probably be described as “failed states”.
        If the internal intelligence services of these countries do not have an established, cooperative relationship with U.S. intel, vetting is much more difficult.
        Pakistan may well fall in that category… guess would be that the continued need to access landlocked Afghanistan via Pakistan kept it off the list of “banned” countries.

  9. What is the first duty of government? Provide for the safety (security) of its citizens. With that in mind, what should a new President do with regard to foreigners that seek entry into the United States? If the President does not have confidence in the current system should he 1. Do nothing – let the current system run its course? 2. Conduct a review of the current system and implement recommended changes? 3. Close the borders?

    The obvious answer is to order a review of our current system. Should he then continue with the current system until the review is completed and recommended changes are made? Should he shut down the entire system until the review is completed and recommended changes are made? Should he use the previous administrations policy regarding countries that pose the greatest threat and put restrictions on them while the review and changes are made?

    Of course Trump went with the last option and he identified how temporary these restrictions will be. I’m not clear why this is controversial. Is it controversial because Trump stated he wanted to ban Muslims? Is it because he wants to favor minority (non-Muslim) immigrants from Muslim majority countries? Is it because Muslim immigrants/refugees are assimilating without incident in the countries they enter? Okay that last one was to see if anyone is paying attention. Or is it because Donald Trump is President, represents the GOP and must be opposed for anything he does?

    With all the opposition to President Trump from November 8th through January 30th, the only reasonable conclusion is Donald Trump should expect ZERO support from Democrats and the Left, for ANYTHING that would put the Republican Party or any party other than the Democrats in a favorable light. What the Democrats still don’t understand is that Americans do not like it when politics put their lives, their liberty and their property at risk.

  10. JT says above: 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.

    Terrible mistake? JT would not have said that had the EO been promulgated on 9/12.

    Poorly executed? I say don’t wait for the terrorists to get wind of it. You don’t need a weather man to know which way the wind blows.

    Inimical to our values as a nation? No. Our nation has done a lot worse in terms of limiting entry into our country. Our nation locked up Japanese American citizens in WWII in concentration camps. Billy Boy Clinton gave a Medal of Freedom to Korematsu when he was in his old age. But American voters voted for Trump and not Billy boy’s wife Hillary. We had a choice and not an echo.

    JT: Ever hear that phrase: A choice, not an echo? How about the rest of you commenters who are bitching about our new President? There was a book of that title and the author just died this year. The Eagles would be flying high for Trump this morning and need their forum. When one reads the national media this morning one only can find the attitudes of the weenies.

    Keep the friggin terrorists OUT !

  11. Who can be excluded as an immigrant to the United States?

    January 31, 2017 by Scott Bomboy


    The debate over immigration restrictions in the United States isn’t a new topic. A quick review of American immigration policies shows that legal cases over restrictions date back to the 1880s, and various groups have been barred entry to the United States since then.

    Case file documents from the Exclusion Era

    The current debate is centered on the Trump administration’s policy, enacted with an executive order, that temporarily restricts immigration for refugees to the United States and for residents of seven Middle Eastern countries seeking valid visas.

    President Trump cites powers granted to him by Congress under the Immigration and Naturalization Act of 1952 as allowing the President to place temporary restrictions on immigration based on country of origin. Opponents of the policy object to the executive order on various constitutional grounds, including claims the President’s executive order violates the separation of powers provisions in the Constitution and poses a religious test for entry into the country.

    In the past, tests and criteria have been frequent factors in considering admission to this country. And adherents to some political and moral philosophies have consistently been barred from entry to America.

    Today, the federal government has the authority to decide who becomes a citizen or resides in the United States. Congress set the first basic immigration requirement in 1790, which required a two-year residency in the United States for those who sought citizenship.

    Congress and the executive branch work together on matters of immigration policy and enforcement. Although there is no explicit mention of immigration policy in the Constitution, a series of Supreme Court decisions has established that the political branches of the federal government—Congress and the President—share responsibility for immigration. In many cases, Congress passes immigration laws enforced by the executive branch; in other cases, the executive branch has prosecutorial discretion to implement immigration policies.

    In 1875, the first direct immigration-criteria law, the Page Act, came from Congress. It declared that people and groups could be excluded as immigrants based on specific criteria. Initially, prostitutes and criminals were banned from entry, and port inspectors were appointed to question and screen immigration candidates.

    The Chinese Exclusion Acts, passed by Congress and signed into law by President Chester Alan Arthur in 1882, at first barred Chinese laborers from entering the United States, and these restrictions were expanded to many ethnic Chinese, regardless of nationality, in subsequent laws.

    The Supreme Court ruled on the constitutionality of the Chinese Exclusion Acts in 1889 in the case of Chae Chan Ping v. United States, where the Court said that immigration matters were part of the plenary power shared by the legislative and executive branches and disputes over those laws “are not questions for judicial determination.”

    The Immigration Act of 1891 expanded the list of “undesirables” to include “idiots, insane persons, paupers or persons likely to become a public charge,” persons suffering from certain contagious disease, felons, persons convicted of other crimes or misdemeanors related to “moral turpitude,” and polygamists. In 1903, an immigration act signed by President Theodore Roosevelt added anarchists to the banned list and the act allowed immigration officials to ask people about their political beliefs during the questioning process.

    In 1917, another act combined all the previously defined excluded groups in one do-not-admit list; added alcoholics to the list; required literacy tests; and banned people from many parts of the Asia-Pacific region, and in 1924, quotas were set for immigration based on countries of origin, and Japan was effectively added to the do-not-admit list.

    By the 1950s, immigration exclusion laws changed to lift the ban on Chinese immigration, and the 1952 McCarran-Walter Act (also known as the Immigration and Naturalization Act) eliminated immigrants who advocated “the economic, international, and governmental doctrines of world communism.” (President Harry Truman vetoed the McCarran-Walter Act, but Congress overrode the veto.)

    The 1952 version of the Immigration and Naturalization Act combined various immigration laws and provisions into one act. The act has been amended many times since then, including a significant revision in 1965.

    As the immigration system has grown more complex, there are still some basic criteria left from older exclusion laws.

    In overall terms, the Immigration and Naturalization Act provides for an annual worldwide limit of 675,000 permanent immigrants, with exceptions for close family members. Potential immigrants are evaluated based on family, employment, refugee and country-of-origin criteria.

    According to the State Department rules on which criteria make potential immigrants ineligible for visas under the INA, people can be excluded if they have certain health conditions or have a criminal record. Potential immigrants found to have terrorist ties are also excluded, including anyone who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.”

    Anyone who is a current member of a totalitarian party is still excluded, such as “any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign.” There are provisions to allow former party members to come to the United States as immigrants, based on how long ago they ceased their party membership and if they lived in a nation where the ruling government prescribed party membership. And the ban placed on polygamists back in 1891 still stands.

    If you have specific questions about people or classes of people who could be ineligible to enter the United States, the State Department maintains a list on its website at

    Scott Bomboy is editor in chief of the National Constitution Center.

  12. I reckon you got to start somewhere. I know in my youth we had to shovel manure out of the barn. Some had straw mixed in some didn’t but it had to be done and at least we could put in the compost pile or spread it on the garden or pasture areas and get some use out of it.

    Just got my new VA forms to show I don’t have to get fined so for a lot of people they wil get a tax break that way of the ban on the fines. My sister reports where she works at Mayo Clinic who opted out of from the beginning didn’t lose any clients but thinks they gave them a premium break based on paying the fine and will probably stickwith it. I suppose that’s insider info but I’m not investing

    Anyway back to the immigration manure pile going through this much needed exercise, and as that first judge showed, will straighten out the Obama Crap and put everything back on a legal footing under Constitutional law instead of the Philosophy of Whims system.

    I see the two day with about 700,000 entries the total detained and delayed was 700 something the main delay was a the baggage carousels. None were denied but all were checked.

    Any of those folks who had Green Cards or some kind of official card with the little gold chip should be good to go the problem seemed to be the vetting down outside the country was not quite as thorough as they claimed in the State Departmeht but either way with help from the courts this phase using the list from Obama administration and the following lists should give us a worthwhile final product.

    As far as those detained or delayed I wondere who got home first the delayed or the protestors.

    As far as Sally Girl is concerned she can go back to selling cosmetics. How did that women get to be Asst AG without any indication of legal training. I thought it was required up to but of course not including SCOTUS?

  13. First, goodbye Sally Yates!!!! Second, I think the President is within his powers, as was Obama and Carter. My father-in-law, mother-in-law and brother-in-law all got caught up when the Chinese were prevented from immigrating to the United States. That was an act of Congress, which also has the power to exclude who comes to the United States.

  14. I defer to your legal background and experience in this area of law. Two things I don’t see a way past.
    1. This is a Muslim Ban, it has been reworded in an attempt to make it appear legal (a Rudy Giuliani proudly boasts). All claims that is really isn’t while wining and nodding are mere claims.
    2. The order singles out Christians for favorable treatment. This goes against the religion our country was founded on.
    As an aside, Trump certainly had the right to fire Sally Yates. The language he used in doing so makes him appear to be petulant and vindictive. That he went around his Cabinet and Congress makes him appear dictatorial. Working with Congressional staff, requiring them to sign non’disclosure agreements and not discuss their secret actions with Congress members and Committee Chairman has caused a rift that may never heal with Congress. Not off to a good start.

    1. enigmainblackcom – First, Congress leaks like a sieve. Second, people like Trump carry extra confidentiality agreements around with them. Their life is based on them. Third, if you were Trump would you have people signing NDAs?

      1. You singled out Congress which I’ll come back to. He didn’t discuss this with his Cabinet, Mattis, Tillerson, Kelly were all in the dark. Steve Miller who along with Bannon wrote the order used to work for Sessions so we don’t know what he knew. Trump apparently does believe he knows more than the Generals.
        Back to Congress. He went to Congressional Staff and instructed them not to tell their bosses. What happened to the three branches of Government? The Executive can take and use resources of the Congress without their knowledge and consent? What would happen to your relationship with an employee of yours who worked behind your back in this manner?
        Congress does leak like a sieve but usually not on matters of National Security which amazingly included the Trump/Russia investigation which apparently half of Congress and many media sources knew about well before the election.The Congressional leaders he went around might have actually helped him achieve his goal by helping with the roll-out and avoiding things like barring people with green cards and military translators. I don’t care about the NDA, it’s the going behind the back. BTW, much of the leaking from Congress comes from Congressional staffers like those utilized.

      1. Exactly how did the Obama administration single out Christian refugees to be ignored? Please be specific to the Obama Administration and not the United Nations or other parties.

          1. I rarely post anything from Fake News sources like CNN, Washington Post, etc.
            So NO, I do not post Fake News.

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