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Legal Analysis of Trump Executive Order on Refugees

February 27, 2017

LEGAL ANALYSIS OF TRUMP EXECUTIVE ORDER ON REFUGEES

By: Stephen Meili, Clinical Professor in Law, University of Minnesota Law School†

On January 27, 2017, President Trump issued an Executive Order (“Order”) curtailing entry to the U.S. by immigrants, non-immigrants and refugees in three significant ways:

(1) Creating a 120-day moratorium on the U.S. refugee resettlement program, effective from the day that the Order was signed.[1]

(2) Indefinitely barring the entry of refugees from Syria.[2]

(3) Suspending for ninety days the entry of nationals (i.e., refugees or other persons) from seven specific countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.[3]

The Order creates an exception for members of religious minorities who seek to escape persecution.[4] Although the Order does not explicitly identify any particular religious minorities who would fit within this exception, President Trump has indicated that it will apply only to Christians.[5]

According to a State Department cable issued on the same day as the Executive Order (but released several days later), the State Department “provisionally” revoked all valid visas held by persons of those same seven countries, with narrow exceptions for diplomatic visas and case-by-case determinations made in the national interest.[6] As a practical matter, this means that any nationals from the seven targeted countries who have a visa issued by the U.S. and are currently out of the country will be unable to reenter. Moreover, the plain language of the cable indicates that even visa holders from the seven targeted countries who are currently within the U.S. have also had their visas revoked. Given that a revoked visa is grounds for removal from the United States under the Immigration and Nationality Act, those persons are at risk of deportation.[7]

The Order has been challenged in federal court lawsuits, the most prominent of which is the case currently pending in the U.S. District Court of Washington. On February 9, 2017, the Ninth Circuit Court of Appeals upheld the District Court’s Temporary Restraining Order preventing implementation of the Order. What follows is a legal analysis of the Order’s provisions and whether they run afoul of domestic and international law. It contains references to the Ninth Circuit opinion where appropriate.

I. U.S. DOMESTIC LAW

As a preliminary matter, it is important to keep in mind that the judicial branch of the U.S. government has historically shown great deference to the political branches of federal government (i.e., the President and Congress) in their setting of immigration policy.[8] This “plenary power” over immigration enjoyed by the political branches stems from the recognition that U.S. immigration policy is strongly intertwined with the nation’s foreign policy priorities.[9] The judiciary is thus reluctant to second-guess the other two branches on matters of immigration policy.[10] And while the Constitution protects non-U.S. citizens once they have entered the U.S., it is less clear that it extends to refugees who have not yet entered the country.[11] One of the issues likely to be tested through the various lawsuits challenging the Order is the strength of the legal fiction that refugees who arrive at U.S. airports but have been denied admission to the country have not “entered” the country and are thus not entitled to Constitutional protections. Those refugees who have arrived with the proper paperwork issued after the extensive vetting process in their home country may have a stronger argument that they have the right to enter and the constitutional protections that flow from that right.

While executive power over immigration matters is extensive, it is not unlimited. In its decision upholding the District Court’s TRO enjoining the Order, the Ninth Circuit stressed this point in very strong terms:

Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. [12]

Indeed, the Supreme Court and other courts have consistently held that the political branches’ authority over immigration is subject to constitutional challenge.[13] This struggle between executive authority and constitutional limitations forms the central jurisprudential context for this dispute.

II. IMMIGRATION AND NATIONALITY ACT (INA)

The INA is the chief domestic statute governing U.S. immigration law.[14] There are two conflicting statutory provisions at issue in the litigation over the Order: § 1182(f) and § 202(a). On the one hand, § 1182(f) of the INA grants the President broad authority to suspend the entry of aliens or classes of aliens (including immigrants and nonimmigrants) whom he or she finds to be detrimental to the interests of the United States.[15] Section 1182(f) is, in a sense, a codification of the plenary power over immigration alluded to in the previous section. And while the Order does not invoke this provision in particular (its only statutory reference is to the INA as a whole[16]), the text of the Order includes numerous references to national security and/or the need to protect the United States from terrorists.[17] While this provision is a concrete illustration of the broad power of the executive to determine who can enter the United States and who may be refused entry, it is subject to constraints in other parts of the INA, as well as the U.S. Constitution.

The Ninth Circuit opinion contains no explicit reference to § 1182(f), which is a bit surprising, given that the Government had asserted it as the principle reason why the States would be unlikely to succeed on the merits.[18] The Opinion does refer to the Government’s contention that the District Court had lacked standing to hear the case below because the President has “unreviewable authority to suspend the admission of any class of aliens.”[19] The Ninth Circuit rejected this argument rather abruptly, commenting that there was no authority to support such a claim of unreviewability, adding that it “runs contrary to the fundamental structure of our constitutional democracy.”[20]

The other section of the INA most relevant to the Order is § 202(a), which prohibits discrimination in the issuance of immigrant visas on the basis of race, sex, nationality, place of birth, or place of residence.[21] This section of the INA has a more limited scope than § 1182(f) however, as it only applies to immigrant visas, whereas the President’s authority to suspend entry based on national interests applies to all immigrants and nonimmigrants.[22]

III. FIFTH AMENDMENT DUE PROCESS

As noted above, non-citizens physically present in the United States are entitled to due process protection under the Fifth Amendment.[23] Thus, visa holders from the seven targeted countries in the U.S. who, according to the U.S. State Department, have had their visas summarily revoked, have argued that the government has violated their right to Constitutional due process. This argument is particularly strong because: (1) none of those affected have had the opportunity to argue that the Order should not apply to them, and (2) reports of the chaotic and non-deliberative way in which the Order was conceived and promulgated suggests that the rights of non-citizens were not properly taken into account before their visas were revoked.[24] This argument also applies to visa holders from the seven targeted countries who were outside the U.S. at the time the Order was issued and have since sought to return.[25]

The Ninth Circuit’s opinion on the Order confirms the due process rights of non-citizens within the United States in strong terms:

The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.”[26]

The Ninth Circuit resisted two arguments through which the Government has attempted to narrow the scope of the Order for purposes of passing constitutional muster. First, the Government had argued that following the promulgation of the Order, the White House Counsel indicated that it was not applicable to lawful permanent residents.[27] The Ninth Circuit refused to accept this limitation, noting that the Government had cited no authority under which the White House counsel has the power to amend an executive order and that the Government had not established that the Order so amended was binding on any of the executive branch officials charged with enforcing it.[28] And second, the Ninth Circuit declined the invitation by the Government to narrow the Order such that it does not apply to previously admitted non-citizens who are currently outside the U.S. or who wish to travel and return to the U.S. in the future.[29] The court noted that “it is not our role to try, in effect, to rewrite the Executive Order.”[30]

One interesting issue left only partially addressed by the Ninth Circuit is the due process rights of non-citizens who have not previously been to the United States. At first blush, such persons fall outside the boundaries of due process established by the precedent outlined above; i.e., one must be physically present within the U.S., or have previously obtained lawful status prior to leaving and seeking reentry. But the Order affects thousands of refugees and asylum seekers who have never been to the U.S. The Ninth Circuit first suggests that asylum seekers have acquired due process protections through those parts of the INA that establish procedures for seeking asylum and “related relief” in the U.S.[31] Later in its opinion, the Ninth Circuit suggests that while persons who have never been to the U.S. may not enjoy due process protections, citizens who have an interest in specific non-citizens’ ability to travel to the U.S. may enjoy such protections.[32] Here, the Ninth Circuit seemed to be referring to the interests of U.S. citizens whose non-citizen spouses are abroad and have never been to the U.S.[33] The question left unaddressed is the rights of those refugees (i.e., not asylum seekers) who have received security clearances abroad but are barred from entry under the Order.

IV. FIRST AMENDMENT ESTABLISHMENT CLAUSE

Although the language of the Order does not single out Muslims, numerous statements that President Trump and his aides made both during and after his campaign for President indicate that he intended to institute restrictions on Muslims entering the country. [34] Moreover, as noted above, President Trump has acknowledged that his Administration will permit Christian refugees from the targeted seven countries to enter the U.S. These pronouncements exhibit a preference for one religion over others, which violates the Establishment Clause of the First Amendment.[35] In Awad v. Ziriax, the Tenth Circuit enjoined a state provision banning court consideration of Sharia law because the Establishment Clause prohibits any “programs or practices . . . which aid or oppose any religion.”[36] And even if the governmental action does not explicitly privilege any particular religion, if its effect is to favor certain religions over others, it has been held to violate the Establishment Clause. Thus, for example, even though the Minnesota law at issue in Larson v. Valente did not single out any religions by name, because it imposed different registration requirements on religious organizations that received more than half of their total contributions from members, the Supreme Court held that it violated the Establishment Clause because it failed to treat all denominations equally.[37] And while the Establishment Clause, like the rest of the First Amendment, is constructed as a proscription on congressional action, it applies to executive branch action as well.[38]

The Ninth Circuit’s opinion regarding the First Amendment implications of the Order was not as robust as its due process analysis, but it nevertheless held that the States had raised a “serious allegation” and “significant constitutional questions.” But it left consideration of the merits of these arguments to a later date, until after briefing and—one would imagine—more evidence relevant to the argument is presented by each side.[39]

CONCLUSION

As of this writing, numerous news outlets have reported that in lieu of appealing the Ninth Circuit’s upholding the stay on his Order, President Trump is planning to soon submit a revised Order.[40] While the exact contours of any revised order have yet to be officially revealed, it reportedly will exempt lawful permanent residents but will retain the restrictions on travel to the U.S. by individuals from the same seven countries enumerated in the original Order.[41] Such a change would leave the Order vulnerable to attack on the same due process and First Amendment grounds discussed in this post.

† My thanks to University of Minnesota Law School graduate Tracey Alexander (’16) and student Mary Georgevich (’18) for their assistance with this post.

  1. Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017), § 5(a). ↑
  2. Id. § 5(c). ↑
  3. Id. § 3(c). ↑
  4. Id. § 5(b). ↑
  5. See Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), https://www.nytimes.com/2017/01/27/us/politics/trump-syrian-refugees.html?_r=0 (“[President Trump] ordered that Christians and others from minority religions be granted priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017), https://www.washingtonpost.com/world/national-security/trump-approves-extreme-vetting-of-refugees-promises-priority-for-christians/2017/01/27/007021a2-e4c7-11e6-a547-5fb9411d332c_story.html?utm_term=.deffc5fd004c. ↑
  6. Under § 221 of the Immigration and Nationality Act, the Secretary of State has authority to revoke any visa issued to any non-citizen “at any time, in his discretion.” 8 U.S.C. § 1201(i) (2012). And under § 237(a)(1)(B) of the INA, any non-citizen whose visa has been revoked under § 221(i) is deportable. 8 U.S.C. § 1227(a)(1)(B). However, the Administration has issued conflicting signals about whether the Executive Order applies to visa holders from the seven targeted countries who are currently in the U.S. According to the website of U.S. Customs and Border Patrol, it does not apply to at least some of those visa holders:“F1/J1/M1 visas are currently provisionally revoked due to the Executive Order. Individuals who were in the U.S. at the time of the signing of the executive order are not affected by the order.” Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. Customs and Border Protection, https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states (last visited Feb. 15, 2017) (emphasis added). ↑
  7. 8 U.S.C. § 1227(a)(1)(B). ↑
  8. See Cardenas v. United States, 826 F. 3d 1164, 1169 (9th Cir. 2016). ↑
  9. See Fong Yue Ting v. United States, 149 U.S. 698 (1893). ↑
  10. See Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“[O]ver no conceivable subject is the legislative power of Congress more complete . . . .” (quoting Oceanic Navigations Co. v. Stranahan, 214 U.S. 320, 339 (1909)); see also Ekiu v. United States, 142 U.S. 651, 65 (1892) (“It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”). ↑
  11. See Bridges v. Wixon, 326 U.S. 135, 161 (1945) (holding that once non-citizens enter the U.S. they are “invested with the rights guaranteed by the Constitution”); see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“A statute permitting the indefinite detention of an alien would raise a serious constitutional problem.”). ↑
  12. Washington v. Trump, No. 17-35105, slip op. at 14 (9th Cir. Feb. 9, 2017). The Government had argued that the Order was not subject to judicial review because it came within the President’s broad powers to determine admission into the United States, particularly when issues of national security are involved. Id. at 13. ↑
  13. Zadvydas, 533 U.S. at 695; INS v. Chadha, 462 U.S. 919, 940–41 (1983); American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995). ↑
  14. See Immigration and Nationality Act, 8 U.S.C. § 1101–1537 (2016). ↑
  15. INA § 212(f) states, in relevant part: “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.” 8 U.S.C. § 1182(f) (2012). This is the provision which President Trump read in a speech delivered on February 8, 2017. See Joe Cunningham, Trump Literally Reads Immigration Law During Speech to Explain Ban and It Works, RedState (Feb. 8, 2017), http://www.redstate.com/joesquire/2017/02/08/video-trump-literally-reads-immigration-law-speech-explain-ban-..-works. ↑
  16. The only reference to the INA in the Order appears in its opening sentence: “By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows: . . . .” Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). ↑
  17. Indeed, the title of the Order is “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” See also the text of the Order quoted supra note 16. ↑
  18. Reply in Support of Emergency Motion for Stay Pending Appeal, Case No. 17-35105, filed February 6, 2017, at 3 (“Congress has granted the President broad discretion under 8 U.S.C. § 1182(f) to suspend the entry of ‘any class of aliens’ into the United States, and independently broad discretion over the refugee program under 8 U.S.C. § 1157.”). This omission may make the Ninth Circuit opinion vulnerable on appeal. See Jeffrey Toobin, The Vulnerabilities in the Ninth Circuit’s Executive-Order Decision, New Yorker (Feb. 10, 2017), http://www.newyorker.com/news/daily-comment/the-vulnerabilities-in-the-ninth-circuits-executive-order-decision. ↑
  19. Trump, No. 17-35105, slip op. at 13. ↑
  20. Id. at 14 (citing Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will.”). ↑
  21. See 8 U.S.C. § 1152(a)(1)(A) (“[N]o person shall receive any preference or priority or 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.”). ↑
  22. Nonimmigrant visas are issued to tourists, students and other non-U.S. citizens who are permitted entry into the U.S. for a limited time and for specific purposes. Immigrant visas are issued to persons who wish to remain in the U.S. permanently, first as lawful permanent residents (informally known as green card holders) and eventually as citizens. See generally Stephen H Legomsky & Cristina M. Rodriguez, Immigration and Refugee Law and Policy (6th ed., 2015). ↑
  23. See supra note 10. ↑
  24. Brian Naylor, “This Is All on Me”: Trump Homeland Security Secretary on Travel Ban’s Rocky Rollout, Nat’l Pub. Radio (Feb. 7, 2017), http://www.npr.org/2017/02/07/513966413/this-is-all-on-me-trump-homeland-security-secretary-on-travel-bans-rocky-rollout. ↑
  25. See Landon v. Plasencia, 549 U.S. 21, 33–34 (1982); see also Trump, No. 17-35105, slip op. at 21 (citing Landon, 549 U.S. at 33–34). ↑
  26. Trump, No. 17-35105, slip op. at 20–21 (citing Zadvydas v. Davis, 533 U.S. 678, 693 (2001)). ↑
  27. Id. at 21; see also Noah Bierman, Trump Administration Further Clarifies Travel Ban, Exempting Green Card Holders, L.A. Times (Feb. 1, 2017), http://www.latimes.com/politics/washington/la-na-essential-washington-updates-trump-administration-further-clarifies-1485979330-htmlstory.html. ↑
  28. Trump, No. 17-35105, slip. op. at 21–22 (“The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.”). ↑
  29. See Reply, supra note 18 at 11. ↑
  30. Trump, No. 17-35105, slip. op. at 24. ↑
  31. Id. at 20. (“[S]ection 5 [of the Order] contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.”). Presumably the Court was referring to asylum procedures set forth under INA § 208 (8 U.S.C. § 1158 (2012)). And the Court’s reference to “other relief” presumably includes withholding of removal under INA § 241(b)(3) (8 U.S.C. §1231(b)(3)) and the codification of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, under 8 C.F.R. § 208.18. ↑
  32. Trump, No. 17-35105, slip. op. at 23. ↑
  33. Id. (citing Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (rejecting the categorical prohibition of U.S. citizens from asserting liberty interests on behalf of non-citizen spouses). ↑
  34. In its February 9 ruling, the Ninth Circuit cited authority for the propriety of looking beyond the face a facially neutral law to determine if it violates the Establishment or Equal Protection clauses. Trump, No. 17-35105, slip. op. at 25–26 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993); Larson v. Valente, 456 U.S. 228, 244 (1982); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266–68 (1977)); see also David Cole, We’ll See You in Court: Why Trump’s Executive Order on Refugees Violates the Establishment Clause, ACLU: Speak Freely (Jan. 28, 2017), https://www.aclu.org/blog/speak-freely/well-see-you-court-why-trumps-executive-order-refugees-violates-establishment; Vayeghan v. Kelly, No. 17-0702, 2017 U.S. Dist. LEXIS 14212 (C.D. Cal. Jan. 29, 2017). ↑
  35. See Larson v. Valente, 456 U.S. 228 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”). ↑
  36. 670 F.3d 1111, 1127, 1132 (10th Cir. 2012) (quoting Larson, 456 U.S. at 246 (alteration in original) (quotation omitted)). ↑
  37. Larson, 456 U.S. at 241. ↑
  38. See Shrum v. City of Coweta, 449 F.3d 1132, 1140 (10th Cir. 2006) (holding the Free Exercise Clause applicable because “the First Amendment applies to exercises of executive authority no less than it does to the passage of legislation”). ↑
  39. Trump, No. 17-35105, slip op. at 26. ↑
  40. See, e.g., Laura Jarrett, Allie Malloy & Dan Merica, Trump Promises New Immigration Order as DOJ Holds off Appeals Court, CNN (Feb. 16, 2017), http://www.cnn.com/2017/02/16/politics/Donald-trump-travel-ban-executive-order. ↑
  41. Mark Hensch, WH Adviser Stephen Miller: “Nothing Wrong” with Trump Travel Order, The Hill (Feb. 21, 2017), http://thehill.com/homenews/administration/320562-adviser-rulings-on-trump-travel-ban-flawed. ↑
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