Last Friday, US President Donald Trump signed an executive order barring immigration from seven Muslim-majority countries for 90 days while vetting procedures were improved. A day after, a federal judge halted deportations of people who were affected by the order and being detained in US airports, arguing that their detention was without due process and that there would be irreparable harm if they were sent back to their countries of origin.
Similar rulings were issued by judges in other states, and attorneys general from 13 states and the District of Columbia made a joint statement calling the executive order “unconstitutional, un-American and unlawful”. This was seen as the first major setback for the Trump administration, and an early test of American institutions to check his executive authority.
The immigration ban, titled “Protecting The Nation From Foreign Terrorist Entry To the United States”, received the sharpest public outcry of all of Trump’s executive orders thus far. After news spread that travelers arriving from the seven Muslim-majority countries targeted by the law—Syria, Iraq, Yemen, Iran, Libya, Sudan and Somalia—were detained at major airports across the country, protesters amassed at airports over the weekend. Attorneys scrambled to prepare lawsuits on behalf of detainees on the scene. Both Democrats and a growing number of Republicans criticized the order as well.
On Sunday, Secretary of Homeland Security John Kelly softened the impact of the order after issuing a statement exempting Green card holders from the order. The order also leaves room for allowing individuals in on a “case-by-case” basis if admitting the individual in question is in the national interest.
While the federal stay order prevents deportations under the rule, it does not block it entirely, and it lasts only a week without an extension. In the coming weeks, attorneys will challenge the legality of the order to have it struck down. These legal battles will begin in federal courts across the country, possibly making their way up to the Supreme Court.
Opponents of the ban will invoke the Establishment Clause of the First Amendment of the United States Constitution, which stipulates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” A 1982 Supreme Court ruling held that “the clearest command of the Establishment Clause is that one religious denomination cannot be preferred over another.”
Using this line of argument, lawyers will have to prove that the executive order discriminated on the basis of religion. Evidence of this could be gathered through statements Trump made during his presidential campaign, during which he called for a shutdown of Muslims entering the US and remarked that “We’re having problems with Muslims coming into this country.” Former New York City Mayor Rudy Giuliani, who has been given the newly created position of White House Cyber Security Advisor, told Fox News that while the immigration ban was not religious, it was the result of Trump’s request to do his proposed “Muslim ban” legally.
Trump told Christian Broadcast News over the weekend that Christians would be a priority when considering refugee applications, hinting that they would receive preferential treatment during “case-by-case” determinations of entry. The order itself says that refugee claims based on religious persecution will be prioritized “provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
Opponents could also cite the 14th amendment, which the Brooklyn federal judge cited when saying that deportations violated the detainees’ right to due process and equal protection under the law. They will also surely refer to Section 1152(a) of the U.S. Code, which requires that no person can receive preference, priority or be discriminated against because of their race, sex, nationality, place of birth or place of residence. The order blatantly singles out immigrants for their nationality.
It has been argued that protections granted by the Constitution do not apply to non-citizens living abroad. But the Supreme Court’s track record on this issue is mixed. In 1956, the Court ruled that the United States cannot act against citizens abroad “free of the Bill of Rights” (the first ten amendments to the Constitution). Yet in 2015, a federal court dismissed a case involving a border patrol agent’s killing of a Mexican teenager while he was standing in Mexico because he wasn’t on US soil. However, the Supreme Court will hear the case in February.
The biggest protection of the order comes from current laws that grant the president extensive powers on immigration. The executive order invokes Section 1182(f) of the US Code which allows the president to suspend the entry of “any class of aliens as immigrants or non-immigrants” or impose any restrictions on their entry when it is considered detrimental to the interest of the United States. Historically, the government has favoured the president’s authority on foreign affairs in general. Thomas Jefferson, third president of the United States and author of the Declaration of Independence, the United States’ founding document, wrote after the adoption of the Constitution that “transactions of business with foreign nations is Executive Altogether.” A 1936 Supreme Court ruling described executive power as “the sole organ of the federal government in the field of international relations”.
The same applies to the president’s authority in matters of immigration. In 1952, at the height of the Red Scare, Congress granted executive powers to suspend the entry of any foreigner considered harmful to American interests. In 2015, the Supreme Court ruled that the government did not have to provide detailed reasons when denying visas on the basis of national security.
Opponents of the order will then have to argue that presidential powers are not justified in this case because the law is not in the interest of national security. The order states that worsening conditions in conflict-ridden countries will make it increasingly likely that terrorists “will use any means possible to enter the United States.”
Yet according to data compiled by the Cato Institute, a libertarian think tank, there were a total of 20 terrorism convictions of refugees in the US from 1975 to 2015. Three people were killed by refugees in the 1970s, and zero Americans have been killed by a foreign-born national of the countries included in the ban. The chance of an American dying in a terrorist attack committed by a refugee is one in 3.6 billion. This might put the US in a more dangerous position by making cooperation against terrorism with the countries targeted by the ban harder and increasing anti-American resentment abroad.
It may also be argued that hundreds of thousands of residents in American cities come from the countries mentioned in the order. While some of them may be exempt from the ban if they are permanent residents, many will not be able to leave the US or those abroad may not come home, resulting in a disruption of social and economic life in the communities where they are the most concentrated, which could be argued as going against national interests.
If this evidence is given weight, it may be difficult for the government to defend the ban. However, historical trends indicate that the courts may continue to side with the president.
Shehryar Nabi is a communications professional based in Lahore
Similar rulings were issued by judges in other states, and attorneys general from 13 states and the District of Columbia made a joint statement calling the executive order “unconstitutional, un-American and unlawful”. This was seen as the first major setback for the Trump administration, and an early test of American institutions to check his executive authority.
Opponents of the ban will invoke the Establishment Clause of the First Amendment of the United States Constitution, which stipulates that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"
The immigration ban, titled “Protecting The Nation From Foreign Terrorist Entry To the United States”, received the sharpest public outcry of all of Trump’s executive orders thus far. After news spread that travelers arriving from the seven Muslim-majority countries targeted by the law—Syria, Iraq, Yemen, Iran, Libya, Sudan and Somalia—were detained at major airports across the country, protesters amassed at airports over the weekend. Attorneys scrambled to prepare lawsuits on behalf of detainees on the scene. Both Democrats and a growing number of Republicans criticized the order as well.
On Sunday, Secretary of Homeland Security John Kelly softened the impact of the order after issuing a statement exempting Green card holders from the order. The order also leaves room for allowing individuals in on a “case-by-case” basis if admitting the individual in question is in the national interest.
While the federal stay order prevents deportations under the rule, it does not block it entirely, and it lasts only a week without an extension. In the coming weeks, attorneys will challenge the legality of the order to have it struck down. These legal battles will begin in federal courts across the country, possibly making their way up to the Supreme Court.
Opponents of the ban will invoke the Establishment Clause of the First Amendment of the United States Constitution, which stipulates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” A 1982 Supreme Court ruling held that “the clearest command of the Establishment Clause is that one religious denomination cannot be preferred over another.”
Using this line of argument, lawyers will have to prove that the executive order discriminated on the basis of religion. Evidence of this could be gathered through statements Trump made during his presidential campaign, during which he called for a shutdown of Muslims entering the US and remarked that “We’re having problems with Muslims coming into this country.” Former New York City Mayor Rudy Giuliani, who has been given the newly created position of White House Cyber Security Advisor, told Fox News that while the immigration ban was not religious, it was the result of Trump’s request to do his proposed “Muslim ban” legally.
Trump told Christian Broadcast News over the weekend that Christians would be a priority when considering refugee applications, hinting that they would receive preferential treatment during “case-by-case” determinations of entry. The order itself says that refugee claims based on religious persecution will be prioritized “provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
Opponents could also cite the 14th amendment, which the Brooklyn federal judge cited when saying that deportations violated the detainees’ right to due process and equal protection under the law. They will also surely refer to Section 1152(a) of the U.S. Code, which requires that no person can receive preference, priority or be discriminated against because of their race, sex, nationality, place of birth or place of residence. The order blatantly singles out immigrants for their nationality.
It has been argued that protections granted by the Constitution do not apply to non-citizens living abroad. But the Supreme Court’s track record on this issue is mixed. In 1956, the Court ruled that the United States cannot act against citizens abroad “free of the Bill of Rights” (the first ten amendments to the Constitution). Yet in 2015, a federal court dismissed a case involving a border patrol agent’s killing of a Mexican teenager while he was standing in Mexico because he wasn’t on US soil. However, the Supreme Court will hear the case in February.
The biggest protection of the order comes from current laws that grant the president extensive powers on immigration. The executive order invokes Section 1182(f) of the US Code which allows the president to suspend the entry of “any class of aliens as immigrants or non-immigrants” or impose any restrictions on their entry when it is considered detrimental to the interest of the United States. Historically, the government has favoured the president’s authority on foreign affairs in general. Thomas Jefferson, third president of the United States and author of the Declaration of Independence, the United States’ founding document, wrote after the adoption of the Constitution that “transactions of business with foreign nations is Executive Altogether.” A 1936 Supreme Court ruling described executive power as “the sole organ of the federal government in the field of international relations”.
The same applies to the president’s authority in matters of immigration. In 1952, at the height of the Red Scare, Congress granted executive powers to suspend the entry of any foreigner considered harmful to American interests. In 2015, the Supreme Court ruled that the government did not have to provide detailed reasons when denying visas on the basis of national security.
Opponents of the order will then have to argue that presidential powers are not justified in this case because the law is not in the interest of national security. The order states that worsening conditions in conflict-ridden countries will make it increasingly likely that terrorists “will use any means possible to enter the United States.”
Yet according to data compiled by the Cato Institute, a libertarian think tank, there were a total of 20 terrorism convictions of refugees in the US from 1975 to 2015. Three people were killed by refugees in the 1970s, and zero Americans have been killed by a foreign-born national of the countries included in the ban. The chance of an American dying in a terrorist attack committed by a refugee is one in 3.6 billion. This might put the US in a more dangerous position by making cooperation against terrorism with the countries targeted by the ban harder and increasing anti-American resentment abroad.
It may also be argued that hundreds of thousands of residents in American cities come from the countries mentioned in the order. While some of them may be exempt from the ban if they are permanent residents, many will not be able to leave the US or those abroad may not come home, resulting in a disruption of social and economic life in the communities where they are the most concentrated, which could be argued as going against national interests.
If this evidence is given weight, it may be difficult for the government to defend the ban. However, historical trends indicate that the courts may continue to side with the president.
Shehryar Nabi is a communications professional based in Lahore