An Evaluative Discussion on Trump’s Travel Bans:
The Legal Legitimacy and Public Perception, and the Legal Impact, from a Constitutional Perspective.
Bailey Gilbert
Advisor: Professor K. Heller Submitted: 27 July 2018
Table of Contents
Table of Authorities i
Abstract v
Introduction 1
Global Climate 2
Executive Power to Issue Immigration Based Executive Orders 4
Content of the Executive Orders 6
Challenges in Court; Arguments of the Plaintiff 12
Challenges in Court; Arguments of the Government 16
Supreme Court Decision 18
Supreme Court Dissent 19
Trumps Statements on the Orders 20
Application of the Law 22
Table of Authorities Executive Orders
Executive Order 13769 “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States”. January 27, 2017. Category: Immigration. 6, 7, 8, 21 Executive Order 13780: “Executive Order Protecting the Nation from Foreign Terrorist
Entry into the United States”, March 6 2017. Category: National Security and Defense. 8, 9, 10, 11 Presidential Proclamation 9645: “Presidential Proclamation Enhancing Vetting
Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats”. September 24 2017, Category: National
Security and Defense. 11, 12
Case Law
Knauff v. Shaughnessy, 338 U.S. 537 (1950) 6
Aziz v. Trump, 234 F. Supp. 3d 724, 2017 U.S. Dist. LEXIS 20889, 2017 WL 580855 13 Int'l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 2017 U.S. Dist. LEXIS
37645, 2017 WL 1018235 14
Hawai'i v. Trump, 265 F. Supp. 3d 1140, 2017 U.S. Dist. LEXIS 171242, 2017 WL
4639560 14
Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 2017 U.S. App. LEXIS 9109,
2017 WL 2273306 14, 22
Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, 1971 U.S. LEXIS 19 15, 23, 25 McCreary County v. ACLU, 545 U.S. 844, 125 S. Ct. 2722, 162 L. Ed. 2d 729, 2005 U.S.
LEXIS 5211, 15 A.L.R. Fed. 2d 865, 18 Fla. L. Weekly Fed. S 532 15, 19 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180-81, 120
S. Ct. 693, 145 L. Ed. 2d 610 (2000) 16
Washington v. Trump, 847 F.3d 1151, 2017 U.S. App. LEXIS 2369, 2017 WL 526497 17 Kleindienst v. Mandel, 408 U.S. 753, 92 S. Ct. 2576, 33 L. Ed. 2d 683, 1972 U.S. LEXIS
22 17
Aziz v. Trump, 234 F. Supp. 3d 724 17
Trump v. Hawaii, 138 S. Ct. 2392, 201 L. Ed. 2d 775, 2018 U.S. LEXIS 4026, 86
U.S.L.W. 4602, 27 Fla. L. Weekly Fed. S 503, 2018 WL 3116337 18, 19, 20 Trump v. Hawaii, 138 S. Ct. 2392, 201 L. Ed. 2d 775, 2018 U.S. LEXIS 4026, 86
U.S.L.W. 4602, 27 Fla. L. Weekly Fed. S 503, 2018 WL 3116337, Justice Sotomayor
Dissenting 19, 28
Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604, 1984 U.S. LEXIS 37,
52 U.S.L.W. 4317 19
Johnson v. Southern Pacific Co., 196 U.S. 1, 25 S. Ct. 158, 49 L. Ed. 363, 1904 U.S.
LEXIS 677 20
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472, 1993 U.S. LEXIS 4022, 61 U.S.L.W. 4587, 93 Cal. Daily Op. Service 4295,
93 Daily Journal DAR 7368, 7 Fla. L. Weekly Fed. S 393 22
Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66 L. Ed. 2d 199, 1980 U.S. LEXIS 2, 49
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719, 201 L. Ed. 2d 35, 2018 U.S. LEXIS 3386, 86 U.S.L.W. 4335, 102 Empl. Prac. Dec. (CCH) P46,050, 27
Fla. L. Weekly Fed. S 289, 2018 WL 2465172 27, 28
United States Constitution
US Constitution, Article I, Section 8 5
US Constitution, Article II, Section 1 5
US Constitution, Article II, Section 2 5
US Constitution, Article II, Section 3 5
US Constitution, Bill of Right, Amendment 1 12
US Constitution, Article III, Section 2 16
US Statutory Law 8 U.S.C. §1182 7, 14 8 U.S.C. §1201 8 8 U.S.C. §1202 7, 8 8 U.S.C. §1351 8 Articles
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RESEARCH CENTER(2017),
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https://www.reuters.com/article/us-usa-islam-hatecrime/u-s-anti-muslim-hate-crimes-rose-15-percent-in-2017-advocacy-group-idUSKBN1HU240 (last visited Jul 26, 2018). 3 Eric M. Johnson, MORETHAN 500,000 PEOPLEHOMELESSINTHE UNITED STATES:
REPORTREUTERS(2015),
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Susan Caminiti, AMERICA'SDIRTYLITTLESECRET: 42 MILLIONPEOPLEARESUFFERING FROMHUNGERCNBC(2016),
https://www.cnbc.com/2016/12/13/americas-dirty-little-secret-42-million-are-suffering-from-hunger.html (last visited Jun 15, 2018). 4 United States Unemployment Rate | 1948-2018 | Data | Chart | Calendar, HAITI EXPORTS |
2008-2018 | DATA | CHART | CALENDAR | FORECAST | NEWS,
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Most American voters support limited travel ban: poll, REUTERS(2017),
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Introduction and Copying, AN OVERVIEWOFTHE ELEMENTSOFA COPYRIGHT
INFRINGEMENT CAUSEOF ACTION - PART I: INTRODUCTIONAND COPYING,
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IMMIGRATION. HERE'SWHERETHETRAVELBANDIFFERSLOS ANGELES TIMES(2017),
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Jenna Johnson, TRUMPCALLSFOR 'TOTALANDCOMPLETESHUTDOWNOF MUSLIMS ENTERINGTHE UNITED STATES 'THE WASHINGTON POST(2015),
https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-the-united-states/?
noredirect=on&utm_term=.64df3f312ba2 (last visited Jun 15, 2018). 21
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DONALD TRUMP CNN, http://edition.cnn.com/TRANSCRIPTS/1603/09/acd.01.html. 9
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LAWYERS THE NEW YORKER(2017),
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These Trumpian Tweets May Decide If the Supreme Court Ends the Travel
Ban, PLURALIST.COM(2018),
https://www.pluralist.com/posts/566-these-trumpian-tweets-may-decide-if-the-supreme-court-ends-the-travel-ban . June 5 2017 (last visited Jun 15,
2018). 22, 27
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http://www.nationmaster.com/country-info/stats/Religion/Religions (last visited Jun 15, 2018). 24 United Nations, FIGURESATA GLANCE UNHCR,
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Countries Compared by Religion > Religions. International
Statistics, NATIONMASTER.COM,
http://www.nationmaster.com/country-info/stats/Religion/Religions (last visited Jun 15, 2018). 24, 25 State Department, South Sudan 2016 International Religious Freedom Report.
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https://www.pbs.org/newshour/nation/convicted-terrorists-citizens (last visited Jun 15,
2018). 25
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COMPLICITIN HARBORING BIN LADEN?BROOKINGS(2016),
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ENTERINGTHE UNITED STATES'THE WASHINGTON POST(2015),
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utm_term=.7b5f4aab0240 (last visited Jun 15, 2018). 27 Richard Wolf, TRAVELBANLEXICON: FROMCANDIDATE DONALD TRUMP'SCAMPAIGN
PROMISESTO PRESIDENT TRUMP'STWEETSUSA TODAY(2018),
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EUROPEAN COURTOF HUMAN RIGHTS | ASIL(1997),
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Gallup, Inc, TERRORISMGALLUP.COM,
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Treaties
International Convenant on Civil and Political Rights, Ratification List.
https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND 1, 29
UNHCR States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, pg. 4 http://www.unhcr.org/en-us/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html 1, 11, 29 Dictionary Definition
Merriam Webster Dictionary, defines Terrorism 1
Trial De Novo Legal Definition, MERRIAM-WEBSTER,
https://www.merriam-webster.com/legal/trial de novo (last visited Jun 15, 2018). 17 What is legislative intent? definition and meaning, BUSINESSDICTIONARY.COM,
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(last visited Jun 15, 2018). 3
Libby Nelson, "WHYWEVOTEDFOR DONALD TRUMP": DAVID DUKE EXPLAINSTHE WHITESUPREMACIST CHARLOTTESVILLEPROTESTSVOX(2017),
https://www.vox.com/2017/8/12/16138358/charlottesville-protests-david-duke-kkk (last
Abstract
This thesis presents an analysis of the executive orders regarding national security presented in the first year of the Trump presidency to determine whether they would stand up to a constitutional analysis and an international law analysis, and what the impact of the outcome of that analysis would be. This thesis will focus on an establishment clause argument, with an analysis of Trumps own statements regarding the executive orders
throughout the Trump campaign and the Trump presidency, as well as the global climate and culture that have led to the position where Trump would feel justified in proposing these orders. President Trump presented three separate executive orders regarding national security, focused on limiting and restricting immigration from a group of listed countries in the interest of protecting the United States from acts of terrorism. The executive orders have been
challenged in court multiple times on establishment clause grounds, and the Supreme Court issued a final decision on the orders in June of 2018 in favor of the government, with a rousing dissent by Justice Sonia Sotomayor.
Introduction
For close to three decades1, there has been increased global fear of the threat of terrorism2,
particularly in the western3 world4. This increased fear of terrorism has also been shown to
create a state of concern about the increased number of immigrants and refugees, and sometimes fear of this influx has manifested in a rise of right wing policies that promise protection from these outside dangers, such as a rise in right leaning political ideologies, such as those that led to the rise of President Trump and his subsequent election in November of 2016, and more extreme measures, such as a rise in white nationalist political ideologies and pro-Neo Nazi idealism in western countries.
President Trump presented two executive orders and one presidential proclamation specifically focused on the reformation of the United States Immigration and Refugee and Asylum policies. These orders have been referred to as Travel Bans and Muslim Bans by the media, and the President himself on multiple occasions, and the Presidents rhetoric
surrounding the bans put doubts on the intentions of the travel bans as a whole. The executive orders place immigration restrictions on nationals of listed countries, which was adjusted with each order, and have since been challenged in court in a multitude of states.
The United States has ratified5 the International Convention on Civil and Political Rights,
which includes the right to freedom of religion and the right of nondiscrimination by the contracting states, as well as the 1967 Protocol Relating to the Status of Refugees6, which
contains provisions regarding freedom of religion for refugees, nondiscrimination provisions, as well as provisions ensuring individual considerations for all applicants seeking asylum.
The executive orders have been challenged on the issues of executive powers regarding immigration and national security and the establishment clause on the bases of infringement 1 Al Jazeera, TIMELINE: TALIBAN IN AFGHANISTANISRAELI–PALESTINIAN CONFLICT | AL JAZEERA(2009), https://www.aljazeera.com/news/asia/2009/03/2009389217640837.html (last visited Jun 15, 2018).
2 Merriam Webster Dictionary defines Terrorism as: (noun) “the systematic use of terror especially as a means of coercion”. Terror, as used in the definition, is defined as: (noun) 4. “Violent or destructive acts (such as bombing) committed by groups in order to intimidate a population or government into granting their demands” 3 According to Gallup, the concern about being a victim of terrorism in the United States reached a high in 2001 of 58% of respondents stating they were somewhat or very concerned and fluctuating between around 24% and 48% in the years following. Gallup, Inc, TERRORISMGALLUP.COM,
http://news.gallup.com/poll/4909/terrorism-united-states.aspx (last visited Jun 15, 2018).
4 In 2016, Gallup conducted a poll in Europe, across 14 countries, to determine the opinion on whether terrorism against their country would be considered a “serious problem”. The poll result showed that a median of 66% of respondents believed that acts of terrorism against their country by non-residents was a “serious problem”, and a median of 64% of respondents believed that acts of terrorism by residents was a “serious problem”. France had the highest percentage, 96% for both, whereas Iceland had the lowest, at 15% for both. Id. 5 International Convenant on Civil and Political Rights, Ratification List.
https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND
6 UNHCR States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, pg. 4 http://www.unhcr.org/en-us/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html
of the right in the constitution establishing the freedom of religion. These challenges stem from the interpretation of the statements of President Trump before and during his campaign, and during his presidency specifically focused on his attitude and his administrations attitude towards Muslims and Muslim immigrants. The US precedent case law requires a focus on the intention of the drafters of legislation and not only what they put on the page, when
considering the legitimacy of a piece of legislation, and executive orders are not exempt from this constitutional check by the judiciary.
An analysis of these executive orders should include a look at the global climate that has evolved in recent decades, and specifically how that evolution has led to the election of President Trump and the rising fear of terrorism and perceived need for national security, a discussion of the executive power in United States domestic law regarding immigration and national security, an examination of the text of the executive orders, President Trumps own words on the executive orders, an examination of the challenges to the executive orders in court, and the application of the law to the executive orders. The orders should specifically be analyzed under the concepts of the establishments clause, because one of the fundamental building blocks United States was the insurance of freedom to practice any religion. The United States was founded for refugees seeking freedom from religious oppression from the British monarchy in the 18th century, and to ignore a challenge to legislation grounded in an
establishment clause consideration would go against the very intent and purpose of the bill of rights and the forming of the United States as a whole. It is also essential that the courts analyze the executive orders from the perspective of the United States international law obligations, to ensure that the executive orders do not put the government in breach of those legally binding obligations.
Global Climate
In the last two decades, the world has seen an increase in the fear of terrorism that arises from radical Islamist groups such as ISIS, Al-Qaeda, and the Taliban, which were only exacerbated by the events of September 11, 2011. The rise of radical extremism, particular focused in predominantly Muslim countries, did not arise out of nothing. Throughout history, we have seen the impact that western influence in the region has had on radical groups. The existence of the Taliban can be traced back directly to the efforts of the Carter Administration
in 1980 to arm the Afghan resistance in response to the Soviet Invasion of the Middle East7.
The Taliban was built in Pakistan but had been funded and trained by the United States. A significant part of the Radial Islamist movements in recent decades has been targeting the United States and other Western countries. In 1998, Osama Bin Laden spoke on this issue, stating that his intent to target America came from Us occupation of the holy lands of Islam, including the Arabian Peninsula, and “plundering its riches, dictating to its rulers, humiliating its people, terrorizing its neighbors, and turning its bases in the peninsula into a spearhead through which to fight the neighboring Muslim peoples”8. The claimed intent of
radical Islamist movements is to establish an Islamist state, which has led to fear in the west of the threat of radical Islam.
Within the United States specifically, after a high in 2010, there was a steady amount of anti-Muslim hate crimes9, but there has seen a significant increase after the election of
President Donald J. Trump, which is in part due to his personal rhetoric10. But this is not
unprecedented. There is a large culture of fear of Islam and radical terrorist groups in the United States, and a rhetoric from the President that supports this fear could easily be expected to produce such results. In times of fear, people want to feel heard and understood, and President Trump has provided that. At a white nationalist rally in Charlottesville, Virginia in 2017, Vice interviewed participants in the rally to get a better understanding of their intentions, and they spoke about their belief that they were supported by the President in their intentions11. Although Trump denounced the movement of the “alt-right” in November
of 2016, he was actively supported by the KKK and other white nationalist groups during his campaign and into his presidency12.
This culture of fear towards radical Islamist groups and the perceived support of the movement of the alt-right and white nationalist groups by the President have led to a culture 7 Who Is Responsible for the Taliban?, CHEMICAL WEAPONS IN THE MIDDLE EAST - THE WASHINGTON INSTITUTE FOR NEAR EAST POLICY, http://www.washingtoninstitute.org/policy-analysis/view/who-is-responsible-for-the-taliban (last visited Jun 15, 2018).
8 What is jihadism?, BBC NEWS(2014), https://www.bbc.com/news/world-middle-east-30411519 (last visited Jun 15, 2018).
9 Katayoun Kishi, ASSAULTS AGAINST MUSLIMS IN U.S. SURPASS 2001 LEVELPEW RESEARCH CENTER(2017), http://www.pewresearch.org/fact-tank/2017/11/15/assaults-against-muslims-in-u-s-surpass-2001-level/ (last visited Jul 26, 2018).
10 U.S. anti-Muslim hate crimes rose 15 percent in 2017: advocacy group, REUTERS(2018),
https://www.reuters.com/article/us-usa-islam-hatecrime/u-s-anti-muslim-hate-crimes-rose-15-percent-in-2017-advocacy-group-idUSKBN1HU240 (last visited Jul 26, 2018).
11 Elle Reeve/Vice, YOUTUBE (2017), https://www.youtube.com/watch?v=P54sP0Nlngg (last visited Jun 15, 2018).
12 Libby Nelson, "WHY WE VOTED FOR DONALD TRUMP": DAVID DUKE EXPLAINS THE WHITE SUPREMACIST CHARLOTTESVILLE PROTESTSVOX(2017), https://www.vox.com/2017/8/12/16138358/charlottesville-protests-david-duke-kkk (last visited Jul 26, 2018).
that promotes fear as tipping point towards exclusion and separation of groups based on race and religion and culture, and protection of “America First”. A large part of that has led to the belief that America should limit its refugee intact, more so than it already does, because of the huge homelessness crisis in the united states13, the hunger crisis in America14, and rising
unemployment in the United States15. Many people who support the president and his rhetoric
believe that as a nation, the United States should be working to protect and uplift its own people first, before bringing in refugees and helping other countries and foreign nationals. This has led to a place where a faction of the country is in support of the idea of limiting access of refugees and the executive orders as a whole16.
Executive Power to Issue Immigration Based Executive Orders
The “Travel Bans” were issued as Executive Orders by the President. According to the American Bar Association, an executive order is a “signed, written, and published directive from the President of the United States that manages operations of the federal government”17.
The power to issue Executive orders is not explicitly granted in the Constitution by name, but many clauses of Section II of the Constitution, which delineates the powers of the Executive Branch, is the main identified source of this power 18. Executive orders must comply with the
13 According to Rueters, there were more than 500,000 homeless persons in the United States in 2015, and the homelessness level in the United States had been in constanty decrease over the past decade, until it saw its first uptick from 500,000 to around 555,000 in 2017. Eric M. Johnson, MORE THAN 500,000 PEOPLE HOMELESS IN THE UNITED STATES: REPORTREUTERS(2015), https://www.reuters.com/article/us-usa-homelessness/more-than-500000-people-homeless-in-the-united-states-report-idUSKCN0T908720151120 (last visited Jun 15, 2018)., US homeless people numbers rise for first time in seven years, BBC NEWS(2017),
https://www.bbc.com/news/world-us-canada-42248999 (last visited Jun 15, 2018).
14 According to feeding America, in 2016 there were 42 million people in the United States suffering from hunger, close to 1 in 7 American’s were said to be going to bed hungry each night in the US, and close to 15.8 million households don’t have enough food to each. Susan Caminiti, AMERICA'S DIRTY LITTLE SECRET: 42 MILLION PEOPLE ARE SUFFERING FROM HUNGERCNBC(2016), https://www.cnbc.com/2016/12/13/americas-dirty-little-secret-42-million-are-suffering-from-hunger.html (last visited Jun 15, 2018).
15 As of May 2018, the US unemployment rate is at the lowest it has been since 2000, at 3.8%, with 6.07 million persons unemployed within the United States. United States Unemployment Rate | 1948-2018 | Data | Chart | Calendar, HAITI EXPORTS | 2008-2018 | DATA | CHART | CALENDAR | FORECAST | NEWS,
https://tradingeconomics.com/united-states/unemployment-rate (last visited Jun 15, 2018)
16 Reuters reported that 6 in 10 American voters supported the secondary executive order in July of 2015, ranging from strong support to somewhat support of the orders. Most American voters support limited travel ban: poll, REUTERS(2017), https://www.reuters.com/article/us-usa-immigration-poll/most-american-voters-support-limited-travel-ban-poll-idUSKBN19Q2FW (last visited Jun 15, 2018).
17 An Overview of the Elements of a Copyright Infringement Cause of Action - Part I: Introduction and Copying, AN OVERVIEWOFTHE ELEMENTSOFA COPYRIGHT INFRINGEMENT CAUSEOF ACTION - PART I: INTRODUCTIONAND COPYING, https://www.americanbar.org/publications/insights_on_law_andsociety/17/fall-2016/what-is-an-executive-order.html (last visited Jun 15, 2018).
18 Article II Section 1 (1) of the Constitution states that the “executive power shall be vested in the president of the United States”, and the term executive power is where the power for an executive order is derived from.
Constitution, specifically they must be rooted in the Executive powers delineated in Art. II, to be allowed to stand19.
The constitution lays out specific powers that are given to the Executive Branch in Article II20. These powers include control of the Military as Commander in Chief21, the power to
make treaties, nominate judges and other ambassadors and ministers22, and fill vacancies that
may occur during senate recess23. An article for the American Bar Association discussed who,
specifically, controlled national immigration law in the United States24. In Art 1, Section 8,
Clause 4 of the US constitution, delineates the power to “establish an uniform rule of
naturalization” to the federal legislative branch of the United States25. This gives congress the
power to enact all laws regarding US immigration policy, in compliance with limitations given by the Supreme Court regarding the constitutionality of the laws26, clarifying
immigration policy as a firmly federal power27. The executive branch is charged with the
enforcement of the laws presented by congress28, and therefore the enforcement of US
immigration and refugee/asylum policy is in the hands of the Executive, specifically the president.
The president, and the executive, have almost unchecked power in regard to immigration coming from legal precedent. In Knauff v Shaughnessy, the Supreme Court stated that “The Exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.29” Legal experts agree that the president would win a legal fight involving national
19 Presidential Executive Orders have been blocked if it was determined that they exceeded the legal authority of the President, or that they could be better handled with legislation. Republicans support the executive orders at 83%, where democrats only supported 41%.” American Bar Association Journal, 1971, Volume 57, pg 35 20 US Constitution Art II
21 Id. at Art II Section 2(1) 22 Id. at Art II Section 2(2) 23 Id. at Art II Section 2(3)
24 An Overview of the Elements of a Copyright Infringement Cause of Action - Part I: Introduction and Copying, AN OVERVIEW OF THE ELEMENTS OF A COPYRIGHT INFRINGEMENT CAUSE OF ACTION - PART I: INTRODUCTION AND COPYING,
https://www.americanbar.org/publications/insights_on_law_andsociety/14/spring-2014/who-is-responsible-for-u-s--immigration-policy-.html (last visited Jun 15, 2018).
25 Constitution Art I Section 8 Clause 4
26 An Overview of the Elements of a Copyright Infringement Cause of Action - Part I: Introduction and Copying, AN OVERVIEW OF THE ELEMENTS OF A COPYRIGHT INFRINGEMENT CAUSE OF ACTION - PART I: INTRODUCTION AND COPYING,
https://www.americanbar.org/publications/insights_on_law_andsociety/14/spring-2014/who-is-responsible-for-u-s--immigration-policy-.html (last visited Jun 15, 2018).
27 Id.
28Constitution Art II Section 3 states that the executive “shall take care that the laws be faithfully executed”, establishing the power of enforcing US law as a role of the executive branch.
security and the entry of foreign citizens into the country, if they don’t take into consideration the rhetoric surrounding the executive orders specifically30. The executive orders come from a
place of legitimate exercise of executive power, and any challenge to them must come from the intention behind them orders and the impact of the orders, and not the legislative power that the executive may have to enact them.
Content of the Executive Orders
On 27 January 2017, seven days after his inauguration, President Donald J. Trump issued executive order 13769: “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States”, under the category of Immigration31. The order cites the authority
vested in the executive by the Constitution and national law, to include the Immigration and Nationality Act and Section 301 of title 3 of the United States Code and states the intention of the act as “to protect the American people from terrorist attacks by foreign nationals admitted to the United States”32.
In section 1, President Trump explains the purpose of the executive order. Citing to the value of the process of visa issuance, and the impact it has on preventing terrorists from entering the United States, specifically the way a laxer approach33 to the process allowed for
the attacks on 9/11, as an argument for increased levels of immigration procedures that this executive order will establish. The order specifically states an intention to not admit persons who engage in “acts of bigotry or violence”, specifically honor killings, violence against women, persecution of other religions, and those who would oppress Americans34. The order
then goes on to establish, in section 2, the policy that the United States takes on the immigration plan, to protect its citizens from terrorism, and those who would commit
terrorism, and “prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”35 The order then goes on to delineate the
organizations and persons responsible for the enforcement of the orders and how they are to be enforced36, establish a uniform screening process for immigration applications through the
30 David G. Savage & Maura Dolan, THE LAW BACKS A PRESIDENT'S POWER ON IMMIGRATION. HERE'S WHERE THE TRAVEL BAN DIFFERSLOS ANGELES TIMES(2017), http://www.latimes.com/politics/la-na-pol-travel-ban-legal-analysis-20170206-story.html (last visited Jun 15, 2018).
31 Executive Order 13769 “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States”. January 27, 2017. Category: Immigration.
32 Id. paragraph 1.
33 Id. at Section 1, paragraph 1 34 Id. at Section 1, paragraph 3 35 Id. Section 2
Federal Bureau of Investigation (FBI)37, realign the United States Refugee Admission
Program for the 2017 fiscal year, starting with a 120-day suspension of the program38, and
included a provision that would allow changes to the USRAP to prioritize refugee claims made by applicants on the basis of religious-based persecution, provided their religion is a minority religion in their country of nationality39.
Then, citing Section 212(f) of the INA, 8 U.S.C. 1182(f)40, the ban declares that the entry
of Syrian refugees into the country is a detriment to national security, and is therefore suspended until the President has determined sufficient changes have been made to the USRAP to ensure that the admission is consistent with national security41, and limits the total
amount of refugees to be admitted into the country in the 2017 fiscal year to 50,000, and then suspend any further entry until the President can determine that additional interest is in the interest of national security42. Section 5 also provides for the Secretary of State and
Homeland Security to allow refugees on a case by case basis43, with a special provision for
religious minorities, so long as it is beneficial to the national interest44. States and local
jurisdictions are granted a role in determining the placement and settlement of refugees and aliens eligible to be refugees, to be examined by the Secretary of Homeland Security in relation to existing law, to allow them to have greater involvement45. Further in, section 8 of
the order suspends the Visa Interview Waiver Program46, to ensure compliance with §222 of
INA, 8 U.S.C. 120247, and section 9 allows for the Secretary of State to review all reciprocity
37 Id. at Section 4 (a) 38 Id. at Section 5(a) 39 Id. at Section 5(b)
40 8 U.S.C. 1182 is §212 of the Immigration and Nationality Act, specifically focused on admission qualifications for aliens and travel control of citizens and aliens. §f states:
Suspension of entry or imposition of restrictions by President. 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 non-immigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General
relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens
transported to the United States by such airline.
41 Executive Order 13769 at Section 5(c) 42 Id. at Section 5(d)
43 Id. at Section 5(e) 44 Id.
45 Id. at Section 5(f) 46 Id. at Section 8(a)
47 §222 of the INA, 8 U.S.C. §1202 discusses applications for visas. The statute lays out visa application requirements, for both immigrant and non-immigrant visas, and alien registrations, including what the application must include, what documents are necessary for an application, how to verify the application through signature, the confidentiality of the applications, limitations on non-immigrant visas, and the
agreements regarding non-immigrant visas48, specified in §221(c) and §281 of the INA, 8
U.S.C. 1201(c)49 and 135150, to be adjusted if the country in question does not treat United
States nationals in a reciprocal manner51. The order also gives the secretary of homeland
security and the attorney general the task of presenting a public report including statistics on the number of foreign nationals who are involved with terrorism-based offenses in the United and any other relevant public safety information52.
The second travel ban, Executive Order 13780, titled “Executive Order Protection the Nation from Foreign Terrorist Entry into the United States”53, follows a very similar formula.
It is proposed with the same intent and purpose, and clarifies in section 1(b) that the ban did not provide a basis for religious discrimination, that the application of the clause regarding persons fleeing religious persecution from a country where they were of the minority religion was to have been applied to all countries, and that the order as a whole was not motivated by animus towards a particular religion but was in fact intended to promote religious freedom and safety through the US refugee program54. The original executive order had since been
halted by court orders, and the Ninth Circuit declined to lift one such court order pending the outcome of further judicial proceedings55. The order maintains that the listed countries
warrant additional security56 and that they contain a significant terrorist presence, which may
requirements for in person interviews for immigrant visas, including requirement to obtain an interview waiver, and who is required to submit to visa interviews. The Interview Waivers Program includes waivers by the consular office when the alien is in categories delineated in other statutes, specifically 8 U.S.C. §1101, within the NATO visa category, diplomatic visa applicants, applicants applying less than 12 months after a prior visa of the same category expired, applying from the consular office in their country of residence, with no indicated breach of US immigration law, and can be waived by the Secretary of State if they determine the waiver to be within national interest or necessary based on unusual or emergent circumstances.
48 Id. at Section 9
49 8 U.S.C. §1201(c): Period of validity, renewal or replacement. This section provides for the rules on validity of immigrants and non-immigrant visas. Immigrant visas are valid for such a period as regulation prescribed, for a period of up to six months, with exceptions for children lawfully adopted by US citizens who are working abroad for the US military, the US government, or temporary business, not to exceed three years. Non-immigrant visas are valid, as regulations prescribe, with considerations made by the secretary of state, taking into account reciprocal treatment of US immigrants in the applicant’s country of origin, not including refugees or persons resettled in another foreign country, though individual considerations may be made in such
circumstances. The statute also provides for the rules regarding visa replacement and waiver of the immigrant visa fees for children who are coming to the united states to be adopted by US citizens.
50 8 U.S.C. §1351: Non-immigrant Visa Fees. The fees for non-immigrant visa applications shall be decided by the secretary of states, in amounts that correspond to the total of all visa, entry, residence, or other similar fees, taxes or charges that can be levied against nationals of the United States y foreign countries where the non-immigrant is a national or resident. Provided that the non-non-immigrant is coming from or going too the UN headquarters, or coming too the US for charitable purposes involving health care, providing housing or food, job training, or similar services or assistance to the poor or needy, the fees may be waived.
51 Executive Order 13769 at Section 9 52 Id. at Section 10(a)(iv)
53 Executive Order 13780: “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States”, March 6 2017. Category: National Security and Defense.
54 Id. at Section 1(b)(iv) 55 Id. at Section 1(c) 56 Id. at Section 1(d)
increase the chance that terrorists or sympathizers may travel to the United States, and discusses the concern that it is difficult to return these persons back to their nation of origin because of these countries trend of being unwilling or very slow to issue travel documents57.
Section 1(e) discusses the state of six of the countries designated in this executive order, taken from the State Departments Country Report from 201558. This includes Iran, listed as a
“state sponsor of terrorism since 1984”, including Hezbollah and Hamas and Iraqi terrorist organizations, as well as support for al-Qa’ida, allowing them to transport troops through Iran to Syria and South Asia59;Libya, listed as an active combat zone where security and law
enforcement are functionally provided by militias rather than the states, conditions which have been exploited by ISIS and other extremist groups, conditions which make it difficult for the Libyan government to cooperate with counter terrorism efforts60; Somalia, listed as a
“terrorist safe haven”, where Al-Shabaab has operated for years, with “porous borders” and identity documents that are not globally excepted, who does not have the capacity to sustain cooperative efforts with US Counter Terrorism61; Sudan, listed as a state sponsor of terrorism
since 1993, provides safe havens for terrorist organizations for meetings and training, and even though they have ceased support for al-Qa’ida and they now cooperate with the UN, terrorist groups such as ISIS still operate within the country62; Syria, listed as a state sponsor
of terrorism since 1979, and has been engaged in ongoing military conflict with ISIS for control of their territory, while also supporting other groups and not cooperating with US counter terrorism efforts, and has become a base of operations for sending fighters to other countries to commit attacks63; and Yemen, which has been the site of ongoing terrorism
between the government and the Houthi opposition, which has been exploited by ISIS and other groups, allowing weapons smuggling through Yemen’s insecure borders, and does not cooperate with US Counter Terrorism efforts64. Due to these evaluations, this order proposes
a ban on all entry from these countries to avoid the undue potential harm that a terrorist entry into the US from these countries would cause65.
Special considerations are presented for Iraq, which has seen conflict since 2014, but has been cooperative with US efforts to secure their borders and push out ISIS influences in the 57 Id.
58 Id. at Section 1(e) 59 Id. at Section 1(e)(i) 60 Id. at Section 1(e)(ii) 61 Id. at Section 1(e)(iii) 62 Id. at Section 1(e)(iv) 63 Id. at Section 1(e)(v) 64 Id. at Section 1(e)(vi) 65 Id. at Section 1(f)
country. The willingness of the Iraqi government to cooperate with the US, the US presence in Iraq, and Iraqi commitment to combatting ISIS provides for separate considerations for Iraqi, although the influence of ISIS still requires additional scrutiny for applicants from Iraq66. The ban also reports instances of persons admitted to the US through the immigration
system who have been convicted of terrorism and proved to be threats to national security67.
This order is intended, in purpose, to replace Order 13769, to avoid future litigation and ensure that the country is protected from the entry of dangerous foreign nationals into US borders68. The order then continues with provisions for suspensions of visas or closer
consideration of visa applications69 and currently restricts entry into the United States from
Iran, Libya, Somalia, Sudan, Syria, and Yemen70.
The order makes exceptions for lawful residents71, any foreign nationals who have been
admitted or paroled to the US on or after the effective date72, specific groups of foreign
nationals with certain types of visas or documentation73, or any foreign national granted
asylum, any refugee, or any individual granted withholding of removal74, and provides for an
allowance for case-by-case waivers75. Section 4 requires additional considerations to be taken
when considering applications from Iraqi nationals. Their applications shall be reviewed and considered with the concern of individuals aligned with ISIS or other terrorist organizations attempting to enter the United States fresh on the mind of the reviewer76. Section 6 of the
second executive order once again addresses the realignment of the U.S. Refugee Admissions Program for 2017, maintaining the 120-day suspension of the program77, and suspending
entry of any more than 50,000 refugees in the 2017 fiscal year78. This program allows for
some discretion from the government79, but removes clause that specifically allows for
discretionary allowances for refugees fleeing religious based persecution80. The order does
not apply to persons who have been granted asylum, to refugees who have already been
66 Id. at Section 1(g) 67 Id. at Section 1(h) 68 Id. at Section 1(i) 69 Id. at Section 2(a) 70 Id. at Section 2(c) 71 Id. at 3(b)(i) 72 Id. at 3(b)(ii) 73 Id. at 3(b)(v) 74 Id. at 3(b)(vi) 75 Id. at 3(c) 76 Id. at Section 4 77 Id. at Section 6(a) 78 Id. at Section 6(b) 79 Id.
admitted to the US, or to persons granted withholding of removal or protection81 under the82
Convention Against Torture83, and revokes the first executive order, Order 1376984. of
Section 14 of this order defines the effective date of the order, 16 March 201785.
The third and final travel ban took the form of a presidential proclamation, entitled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats”86. It is
written with the same intent of the previous executive orders87. The order presented three
baselines for the kinds of information required from foreign governments to help the United States identify foreign threats88. These baselines include: integrity of travels documents89;
whether the country makes available known or suspected terrorists and criminal history information and whether they impede the US governments ability to receive that information90; and whether the country is a known terrorist safe haven, whether they
participate in the Visa Waiver Program, and whether it regularly fails to receive nationals subject to final orders of removal from the US91. The Department of Homeland Security
collected data on the performance of foreign governments based on the baselines and then assessed each country’s performance in these baseline categories92, and identified 16
countries as “inadequate” based on these assessments, and 31 countries as “at risk”93, and
determined that the following countries continue to have “inadequate” fulfillment of the baselines: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen94, with special
considerations for Iraq95. This proclamation limits and restricts the entry of nationals from
81 The Principle of withholding or removal is also called the principle of non-refoulment, which is presented in Art. 33 of the 1951 Convention Relating to the Status of Refugees, stating specifically that “(1)No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion.” UNHCR States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol
82Executive Order 13780 at Section 12(e)
83 CONVENTION AGAINST TORTURE ART 3 RIGHT AGAINST NON-REFOULMENT 84 Executive Order 13780 at Section 13
85 Id. at Section 14
86
Presidential Proclamation 9645: “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats”. September 24 2017, Category: National Security and Defense.87 Id. at paragraph 1-3 88 Id. at Section 1(c) 89 Id. at Section 1(c)(i) 90 Id. at Section 1(c)(ii) 91 Id. at Section 1(c)(iii) 92 Id. at Section 1(d) 93 Id. at Section 1(e) 94 Id. at Section 1(g) 95 Id.
the seven countries listed96 and nonimmigrants97 from all but one of the seven listed countries.
Somalia was also determined to be ineffective in cooperation and to have a consistent terrorist threat within their territory, and therefore warrants restrictions and limitations on entry into the United States for Somali nationals98. There are specific restrictions for each
country on the list99.
Challenges in Court; Arguments of the Plaintiff
The executive orders have been challenged in the court systems on multiple occasions. The United States Constitution Bill of Rights is made up of 10 amendments, added in 1791, which designated the rights of the people deemed most essential by the government of the time100. The first amendment provides for the right to freedom of speech, freedom of the
press, the right to peaceably assemble, the right to petition your government, and, most important to the basis of this evaluation, the right to freedom religion101. The First
Amendment states that congress “shall make no law respecting an establishment of religion, (…)102”, which has since been labeled The Establishment Clause, existing to prevent the
federal government from implementing policy that respects or promotes one religion over another, respects non-religion over religion, or respects religion over non-religion103. This
policy was essential to the creation of our government, and the political and social climate of the time104. This clause has been a cornerstone of the fundamental freedoms of the United
96 Id. at Section 1(h)(ii) 97 Id. at Section 1(h)(iii) 98 Id. at Section 1(i) 99 Id. at Section 2(a)-(h)
100 The Bill of Rights includes 10 amendments, which include the right to (1) free speech, free press, freedom of religion, right to peaceably assemble, and the right to petition your government, (2) the right to bear arms, (3) forbid the forcible quartering of soldiers during peacetimes, (4) security from unreasonable search and seizure of property, (5) right to a grand jury, protection from double jeopardy, protection from self-incrimination, and the right to due process of law, (6) right to trial by jury, right to trail without delay, right to representation, and the right to know your accuser and the nature of charges against you, (7) right to jury trial in a civil case, (8) prohibition on cruel and unusual punishment, including excessive bail and fines, (9) provides for rights not enumerated in the constitution, and (10) powers not delegated to the federal government by the constitution are reserved to the states, unless otherwise prohibited.
101 United State Constitution, Bill of Rights, Art 1 102 Id.
103 David Carlson, ESTABLISHMENT CLAUSELII / LEGAL INFORMATION INSTITUTE(2017), https://www.law.cornell.edu/wex/establishment_clause (last visited Jul 27, 2018).
104 In the 17th Century, the colonies that eventually became the United States were formed by citizens of
Britain fleeing religious persecution from King James I. In Europe, leading up to the formation of the colonies, Catholics and Protestants held a strong conviction that there must be uniformity of religion, and that this uniformity must be enforced by the government, by any means necessary, even so far as execution. This meant that the dominant religion in an area would persecute any opposition, leading to persecution of Catholics and Protestants alike, by each other’s hand. Those who fled to North America did so in order to avoid this persecution and practice their religions as they saw fit. (John et al., RELIGION AND THE FOUNDING OF THE AMERICAN REPUBLIC AMERICA AS A RELIGIOUS REFUGE: THE SEVENTEENTH CENTURY, PART 1APPLE COMPUTERS: THIS MONTH IN BUSINESS HISTORY (BUSINESS REFERENCE SERVICES, LIBRARY OF CONGRESS)
States and is claimed in the cases brought against the Bans and the Trump administration to be discussed here.
In Aziz v. Trump, 234 F. Supp. 3d 724, the district court for the Eastern District of Virginia heard a case for a writ of habeas corpus, a complain for declaratory and injunctive relief, and an emergency application for a temporary restraining order for 50-60 legal permanent
residents of the United States, with named defendants the Aziz Brothers, after they were denied access to admission at Dulles, and other defendants were denied access to counsel at Dulles. After some motions and amendments were proposed and moved, the Aziz brothers voluntarily dismissed their case, leaving the Commonwealth of Virginia as the only plaintiff, arguing that enforcement of the executive order is a violation of the establishment clause, based on the Presidents rhetoric regarding a Muslim Ban functioning as a central concept of the Trump campaign, and thus poses irreparable harm to the commonwealth. The court stated that “this message of exclusion from the political community is all the more conspicuous when the government acts with a specific purpose to disfavour a particular religion”, in regard to the intent of the government to show favour or disfavour to any one religion over the other, and agreed with the argument of the Commonwealth, and granted an injunction to the Commonwealth, halting the enforcement of the Executive Order105.
In Int'l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, the District Court in Maryland heard a case focused on three organizations and six individuals that assert potential harm by the enforcement and implementation of the second executive order. The plaintiffs claim that the anti-Muslim rhetoric that is under the surface of the Executive Order inflicts injury on the Muslim organizations functioning as plaintiffs. The plaintiffs brought suit under the
Immigration and Nationality Act and the Establishment Clause. Under the Immigration and Nationality Act, the plaintiffs argue that the executive order conflicts with the bar on
discrimination based on nationality, but the court notes that the president is authorized to “bar entry” to certain classes of aliens106, and plaintiffs were unlikely to succeed on this issue.
Under the establishment clause, the plaintiffs argue that the executive orders function as fulfillment of Trumps campaign promises to ban Muslims from entry to the United States. They argue that the purpose of the executive order must be entirely secular, and the court notes that the mere claim of a secular purpose is not enough, but that the court must see that the secular purpose is genuine and not functioning as secondary too an actual religious (1998), https://www.loc.gov/exhibits/religion/rel01.html (last visited Jun 15, 2018).
105Aziz v. Trump, 234 F. Supp. 3d 724, 2017 U.S. Dist. LEXIS 20889, 2017 WL 580855 106 8 U.S.C. § 1182(f)
objective, and the plaintiffs argue that the executive orders fail this test. The court notes that even with the removal of the preferential treatment for religious minorities from the first order to the second, the second order is not exempt from concerns about the establishment clause. The court hears these arguments and determined that the plaintiffs would succeed on the issue of the establishment clause, based on clarified intent from Trumps own rhetoric and the fact that assumed neutrality by removing the religious provision in the second order does not necessarily dispositive of actual religion neutrality107.
In Hawai'i v. Trump, 265 F. Supp. 3d 1140, the District court of Hawai’i, the court granted a temporary restraining order in favor of the plaintiffs, the State of Hawai’i, three individual plaintiffs, and the Muslim Association of Hawai’i. The plaintiffs argue based on the
Immigration and Nationality Act, and the court determined that the arguments made by the plaintiffs were compelling. The plaintiffs argue the executive orders make no effort to explain why some types of persons from the listed countries, while others are not, using the example or Iran, discussing Iran’s continual act as a state sponsor of terrorism but yet the order allows students and exchange visitors from Iran, therefore contradicting the government’s own rationale regarding the intention of the executive orders. The government argues that national security is important enough that the government should be allowed to function with almost limitless power to make choices, and the court rejected the idea that the argument of
limitations on the executive by the judiciary, and the president has not done enough to prove that the executive order is a necessity to National Security and therefore the state and the plaintiffs will prevail108.
In Refugee Assistance Project v. Trump, 857 F.3d 554109, the fourth circuit heard two consolidated
cases, one from Maryland, and one from Hawai’i, both of which resulted in preliminary injunctions granted by the district courts regarding Section 2(c), Section 2 as a whole, and Section 6 of the second executive order. The circuit courts upheld the injunctions, and thus is the consolidated case presented to the Supreme Court in July of 2017, where it was remanded back for dismissal. The court here upheld the injunctions based on the argument that these executive orders were proposed with the intention of excluding persons from the United States based on religion, based on Trump’s own personal rhetoric.
The judicial precedent in the united states has made clear the necessity of legislation with only secular purposes in the United States, based on the Establishment Clause in the first 107 Int'l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 2017 U.S. Dist. LEXIS 37645, 2017 WL 1018235
108 Hawai'i v. Trump, 265 F. Supp. 3d 1140, 2017 U.S. Dist. LEXIS 171242, 2017 WL 4639560
amendment. Lemon v. Kurtzman, 403 U.S. 602 is a fundamental case in the United States Supreme Court evaluation of the Establishment Clause, creating a three-pronged test to evaluate the intention of a piece of legislation. The test includes (1) that the statute must have a secular purpose, (2) that the primary and principle effect must neither advance nor inhibit any religion, and (3) cannot compel or facilitate excessive government entanglement with any religion110. The courts in these cases regarding the executive orders focus the first prong,
analyzing the intent and purpose of the executive orders through the lens of the establishment clause. The courts have also focused on McCreary County v. ACLU, 545 U.S. 844, which requires that the courts make these determinations about the purpose of governmental actions without a psychoanalysis of the government’s actions but must be presented clearly. In McCreary, 545 U.S. 844 the court establishes that the secular purpose requirement is necessary to the function of a government which separates church and state, because if the court shows favor to one religion over another, they send the message to persons who don’t follow that chosen religion that they are not members of the national community, not members of the political community, and by default, that persons who do follow the chosen religion are favored inside members111. A court must function with the viewpoint of an
objective observer of the situation in mind, considering policy statements and historical context, specifically a look into readily discoverable facts, but not attempting deep dive into the hidden intent of the drafters of any legislation112.
Challenges in Court; Arguments of the Government
The government and the lawyers for Trump have argued the justiciability of the case based on lack of standing and consular non-reviewability113, the court should not look past the
110 Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, 1971 U.S. LEXIS 19
111 McCreary County v. ACLU, 545 U.S. 844, 125 S. Ct. 2722, 162 L. Ed. 2d 729, 2005 U.S. LEXIS 5211, 15 A.L.R. Fed. 2d 865, 18 Fla. L. Weekly Fed. S 532
112 Id.
113 The doctrine of consular non-reviewability precludes the judicial branch from reviewing the visa decisions of the state department, related to the plenary power doctrine which immunizes the immigration decisions of congress and the executive branch from judicial review. In Shaughnessy v. United States, the Supreme Court states that “whatever the procedure authorized by congress is, it is due process as far as an alien denied entry is concerned.” There are exceptions to this rule, shown in Kleindienst v. Mandel, where the court establishes that the legislature or executive must only provide a “facially legitimate and bona fide reason” for excluding someone from a visa, even when that exclusion seemed to come from a violation of the first amendment rights of the applicant. Kevin johnson, ARGUMENT PREVIEW: THE DOCTRINE OF CONSULAR NON-REVIEWABILITY – HISTORICAL RELIC OR GOOD LAW?SCOTUSBLOG(2017),
http://www.scotusblog.com/2015/02/argument-text of the Executive Orders when considering the purpose, that the statement of an elected official prior to their oath of office is irrelevant to the considerations of legislation they sign into law once in office, and that the court should not look past the national security
judgements in considerations. The court has evaluated these claims in Hawai’i and Aziz, analyzing the arguments of the government to determine the justiciability of the claims against these executive orders.
The court in Hawai'i, 265 F. Supp. 3d 1140 discussed the concept of basic justiciability,
specifically the concept of a case in controversy, which is required under Art III of the Constitution114. A case must have injury in fact which is imminent or actual and concrete,
traceable to the actions of the defendant, and there must be a likelihood that the injury can be redressed by a favorable decision from the court115. In each case brought before the court, an
organization has brought forth a plaintiff who is directly impacted by the enforcement of the executive orders and therefore qualify for standing and have decided that the states who sued on behalf of themselves have also faced some irreparable damage from the implementation of the orders. On the basis of pure standing, the courts have not found the arguments of the government convincing. On the issue of consular non-reviewability, the court in Hawai’i discusses the troubling intention of the government to circumvent the fundamental
responsibility of the United States Judicial system to ensure the constitutionality and legality of legislation. The court here sites to Washington v. Trump, 847 F.3d 1151, where the court discusses other precedent case law, specifically Zadvydas v. Davis , 533 U.S. 678, and INS v. Chadha , 462 U.S. 919 , stating that there is a clear precedent law allowing for courts to review
constitutional challenges to the “substance and implementation of immigration policy”116. It is
the basic duty of the courts to say where statutory and constitutional boundaries fall117. In
Hawai'i, 265 F. Supp. 3d 1140 the court makes the determination that these case are justiciable based on these evaluations.
The court sites to Kleindienst v. Mandel, 408 U.S. 753, 92 S. Ct. 2576, 118, specifically arguing
that, when facing constitutional review by the court in an immigration context, the
preview-the-doctrine-of-consular-non-reviewability-historical-relic-or-good-law/ (last visited Jun 15, 2018). 114 Art III Section 2 of the US Constitution states that the judicial power of the Judicial Branch extends to cases arising under the US constitution, the laws of the United States, treaties made under authority, and controversies in which the US is a party, or in which two or more states are at odds.
115 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)
116 Washington v. Trump, 847 F.3d 1151, 2017 U.S. App. LEXIS 2369, 2017 WL 526497 117 Hawai'i, 265 F. Supp. 3d 1140
government must “only supply a facially legitimate and bona fide reason for its actions.”119
The court in Aziz, 234 F. Supp. 3d 724, discusses the inapplicability of Kleindienst, 408 U.S. 753, in this situation. Kleindienst, 408 U.S. 753,l on its face does not apply to persons who have already
been granted visa’s, because the case focuses on a person who has not been granted a visa. In
Aziz, as well as in other cases regarding these executive orders, the executive orders in
question apply to a different class of citizens than the case in Kleindienst, 408 U.S. 753,, and then focuses specifically on the specific qualification of “bona fide”. In precedent cases, the courts in the ninth and second circuit have held that if a “facially legitimate” reason for a piece of legislation is given in bad faith, it is by definition not “bona fide”120. The case before the
court here is, by default from the precedent law, focused on the question of secular purpose, determining the reason behind the executive orders121.
The court continues in Aziz, 234 F. Supp. 3d 724 to hear the arguments of the government, specifically that allowing the court to “look behind” would result in a trial de novo122 of the
president’s national security legislative choices. The court states that there is a level of deference given to other branches of government should always be respected and no party is asking the court to ignore that level of deference, rather the question is whether there is a consideration of national security in the intention of the executive orders at all or if the implementation of these orders was entirely based on an attempt to give preferential
treatment to one religion over another123. It is necessary for the court to look at the intentions
of legislation when presented with a challenge, and the court in cases analyzing the executive orders focus strongly on this necessity.
Supreme Court Decision
The United States Supreme Court issued a ruling on the third executive order in June of 2018 and ruled in favor of the government124. In Trump v. Hawaii, 138 S. Ct. 2392, the court
evaluated the executive orders based on the lawful execution of Presidential power and the Establishment Clause. The court here determined the executive orders were a valid exercise of Trump’s executive power under 8 U.S.C. §1182(f). The court discusses the amount of 119 Aziz v. Trump, 234 F. Supp. 3d 724,
120 Id. 121 Id.
122 A trial de novo is a trial in a higher court in which all the issues of fact or law tried in the lower court are reconsidered as if no previous trial had taken place. Trial De Novo Legal Definition, MERRIAM-WEBSTER, https://www.merriam-webster.com/legal/trial de novo (last visited Jun 15, 2018).
123 Aziz v. Trump, 234 F. Supp. 3d 724,
124 Trump v. Hawaii, 138 S. Ct. 2392, 201 L. Ed. 2d 775, 2018 U.S. LEXIS 4026, 86 U.S.L.W. 4602, 27 Fla. L. Weekly Fed. S 503, 2018 WL 3116337
deference given to the executive in regard to issues of national security. When considering the issue of national security, the court determined that the sole restriction on the presidential power is the requirement that the executive must show that the entry of the foreign nationals would be of great detriment to the United States, which the court here determines has been fulfilled by the requirement in the executive orders that the Department of Homeland Security conduct an evaluation of countries to determine whether or not there is a risk. The court determined that the fulfillment of this requirement allows the executive orders to stand.125
When considering the orders through the test of the Establishment Clause, the court here found that the orders would survive an establishment clause challenge. The court considered the requirement in Kleindienst, 408 U.S. 753 for a facially legitimate and bona fide reason for infringement on a constitutional right and determined that the application of rational basis would fulfil this requirement, and that the stated objective of national security was enough to meet this burden. The court made clear that this was not an acceptance of Trumps prior statements regarding the executive orders, but simple that the order were neutral on their face, and that because of the great level of deference provided to the executive on issues of
national security, the court need not evaluate the orders in the light of his statements. The court also clarifies that because the proclamation is not divorced from factual context that would allow the court to connect it to some level of legitimate state interest, it meets the level of rational basis and therefore will be allowed to stand. The court ruled 5-4 on this
decision.126
Supreme Court Dissent
Justice Sotomayor and others dissented from the majority127. In her dissent, she focuses on
the establishment clause argument that was relatively ignored by the majority, as they did not go into an in-depth discussion of the merits of the argument and argues that there is a
violation of the establishment clause and therefore the orders should not be allowed to stand. She does not question the level of deference being given to the Executive under national security, she instead focuses on the fact that this deference does not take away from the 125 Id.
126 Id.
127 Trump v. Hawaii, 138 S. Ct. 2392, 201 L. Ed. 2d 775, 2018 U.S. LEXIS 4026, 86 U.S.L.W. 4602, 27 Fla. L. Weekly Fed. S 503, 2018 WL 3116337, Justice Sotomayor Dissenting
