On January 27, just seven days after Donald Trump took office, he issued Executive Order 17369, an executive order about immigration–you can read the full text here. This order fulfills parts of Trump’s campaign promises to restrict refugee immigration into the United States.
Highlights of the executive order:
-120 day ban of any refugee
-Indefinite ban of any Syrian refugee
-90 day ban of any citizen from Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen
-Applies to dual citizens of one of the above seven countries and another country
-US green-card holders may be banned; cases are addressed on an individual basis
-US citizens traveling from those seven countries will be subject to further questioning.
-After the period, the visa program will be re-opened, unless the ban is extended. Once open, the applications will be prioritized according to religious persecution based on status as a religious minority.
-The cap for acceptance of refugees in 2017 is now set at 50,000
The Trump administration announced the the order very quickly and did not vet the order with the governmental bureaucracy before it was released to the public. As a result, the enforcement of the ban has been extremely convoluted and dogged by questions from many civil-rights groups.
An executive order of this magnitude has multiple legal and constitutional concerns. First, whether the president has the power to limit immigration to this extent without an act of congress. The answer: maybe. President Barack Obama allowed for the slowing of visas for Iraqis after an incident where two visas were processed incorrectly in 2011. However, this was an isolated procedure of heightened investigation, leading to slower admission rates, not a ban of immigration against multiple countries.
Second, the 1965 Immigration and Nationality Act. This law state that you cannot discriminate based on nationality or place of origin in an attempt to earn a visa or green card. This directly goes against the large majority of Trump’s order.
Finally, the Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion”. The Supreme Court has ruled that this acts as prohibiting discrimination based on religion–exactly what the latter part of Trump’s ban does. This clause prohibits the government from favoring one religion over the other; the ban prioritizes immigrants who are in the religious minority in the Middle East, which is predominantly Muslim. Therefore, the executive order favors Christians, which violates the Establishment Clause.
Immediately after Trump announced the order, multiple people were detained in airports. Some immigrants were sent away from the United States on the same plane that they flew in on. However, many officials were paralyzed, unsure of how to enact or enforce the ban.
Two Iraqi men were detained at John F. Kennedy International Airport , Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi. Darweesh worked for the US military in Iraq as an interpreter, risking his life and security to help American soldiers, while Alshwai works as an electrical engineer and was immigrating to the United States to join his wife, a naturalized US citizen.
The American Civil Liberties Union, an organization dedicated to the protection of individual rights, filed suit with a court in New York the day after the men were detained. Lawyers protested that by returning refugees to the country they are fleeing from, they could suffer “irreparable harm”–a key phrase that persuaded district court Judge Ann Donnelly to order a nationwide pause of the executive order, called a stay.
Judge Moore delivered her opinion saying, “I think the government hasn’t had a full chance to think about this,” This is especially in reference to the speed with which it was handed down and the ambiguity with which different parts of the Department of Homeland Security has enforced it.
This stay sounds as though it blocks Trump’s executive order–however, it is very narrow and temporary. The judge’s stay affects only people who were on American soil when the ban was passed–meaning in airports or airplanes headed to the US–and thus the ban stays in effect for all people who are still headed towards the United States. Additionally, the ban only says that people detained in airports cannot be deported, meaning that their status is in question: they can’t be deported, but also have not yet been accepted into the United States.
Two other judges have passed stays limiting the order. Judge Thomas Zilly and Judge Leonie Brinkema both blocked the government from deporting people who had legally immigrated to the US and held valid visas.
The ban has had many side effects. Protests spontaneously erupted across the country at airports. Entire terminals were blocked by protestors at JFK International, Dulles, and Raleigh-Durham Airports. You can read about those protests here <hyperlink Izzy’s article?> Some of the seven countries on the banned list have passed reciprocal bans of Americans–including Iraq, a country with a large US military presence. Iran has officially complained about the United States’ double standards–including Muslim-majority countries in the ban, but not those who are economic or political allies, such as Saudi Arabia.
An interesting side effect of the ban falls into education. Universities with higher proportions of international students, such as MIT, don’t know what the future will hold. Many Iranian Ph.D students are afraid to leave the country, on the chance they will not be allowed back in. Many foreign scientists may be forced to pursue education and experiments in Europe instead of adding their contributions to the economy of the United States.
On Friday, February 3, an appeals court judge in Washington ordered to stop Trump’s controversial immigration ban. Hours later, the Department of Homeland Security announced it was resuming normal inspections of immigrants and travelers–in other words, no longer enforcing the ban. This precedes any action of the Justice Department, which is expected to file a motion against the executive order.
Trump tweeted against the decision, attacking the Judge Robart: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
Other politicians have responded, pointing out that the judge was a George W. Bush appointee and was confirmed in the Senate by a vote of 99-0.
US Customs and Border Patrol told its employees to act as though the executive order had never existed.
The Ninth US Circuit Court of Appeals denied the Justice Department’s request for reinstatement of the immigration order early Sunday morning.
Lawyers attacking the ban under the Washington state government have brought up new concerns: economics. State governments receive taxes from businesses and sales taxes from the immigrants, refugees, and travelers from the seven banned countries.
The Department has until Monday night to defend the ban in this appeals court.