Legal Outlook For Trump’s Travel Ban

The legal community over the weekend discussed competing views on the legal status of President Donald Trump’s immigration ban. Trump’s order shuts out citizens of the seven Muslim-majority countries for 90 days and bars refugees from any country for 120 days. The attorney general of Washington State filed a legal challenge with a federal judge in Seattle, who instituted a nationwide stop on implementing the order. Last week, the Ninth Circuit Court of Appeals upheld the temporary restraining order.

The main underpinning for the Ninth Circuit’s unanimous 3-0 ruling was the Executive Order’s failure to differentiate between immigrants or visa holders or applicants, and green-card-carrying legal residents. Jeffrey Toobin, legal correspondent for the New Yorker, notes that the Ninth Circuit also fails to make that differentiation. In its ruling, the court blasts the Executive Order for failing to provide due process rights such as notice and a hearing – rights that are not necessarily granted to immigrants or visa holders or applicants. “The language of the executive order, which doesn’t explicitly protect green-card holders, bears significant blame for this confusion,” Toobin writes. “Still, the Supreme Court may take a closer look.”

Trump “could solve the most glaring problem a federal appeals court found with his travel ban by explicitly saying it doesn’t cover immigrants who already have a permanent right to live in the U.S.,” Bloomberg Politics wrote. In a post on his blog, Josh Blackman, a professor at South Texas College of Law in Houston, pointed out that the “granting of visas and the decision to allow someone to enter the United States … are distinct questions.” In a response post hosted on the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice blog, cyberlaw attorney and Harvard Law lecturer Ian Samuel took issue with that view, saying it would result in a “profoundly strange” world where persons may get visas and travel to the U.S., only to be sent away at the border.

The Appeals Court also cited the government’s failure to provide evidence that residents of any of the seven countries singled out in the Order have perpetuated acts of terror. “The court requires evidence that people from those countries not only were suspected or arrested for planning, but indeed perpetrated acts of terror,” Blackman told Bloomberg Politics.

Other Potential Weaknesses

The lawsuit brought against the Trump administration by Washington and Minnesota claims that the states’ public universities have standing to sue based on “the teaching and research missions of their universities [which are] harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries.” Though faculty members or students surely have standing, Toobin says the states’ claim of harm is “pretty attenuated.” He also notes that “the Justices of the Supreme Court (and Chief Justice John Roberts in particular) have been sticklers on the standing rule and haven’t hesitated to toss cases on this ground.”

Are Executive Orders on Immigration Reviewable?

One of the Trump administration’s major defenses of the immigration ban has been a federal law that allows the president to suspend entry of “any aliens or of any class of aliens into the United States” who would be “detrimental to the interests of the United States.” Remarkably, Toobin notes, the Ninth Circuit ruling “does not quote or even cite the relevant law.” The law gives the president broad powers in national security, an area where courts have given the executive branch “a relatively free hand,” Toobin writes. “The Ninth Circuit should have engaged with this statutory text and explored its relation to the commands of the Constitution.”

The Court did construct a clear response to the administration’s assertion that its immigration ban was not up for a legal check. The government has “taken the position that the President’s decisions about immigration policy, particularly when motivated by national-security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections,” the appeals court wrote in its ruling (emphasis original). “There is no precedent to support this claimed unreviewability,” they added, saying that Trump’s expectation that his Order not be subject to judicial review “runs contrary to the fundamental structure of our constitutional democracy.”

Religious Discrimination

Critics of the ban have said it constitutes a ban on Muslim immigrants, something Trump references consistently during his presidential campaign. But the plaintiffs have not yet proven that Trump’s Executive Order violates the Constitutional ban on religious discrimination, Toobin says. The Order does not mention Muslims, or any religion, but gives special solicitude for applicants from religious minorities in seven Muslim-majority countries specifically singled out in the order. “But the laws of immigration involve making distinctions about which people may enter the country,” Toobin writes. “[H]ere again the President enjoys wide latitude.” The Appeals Court called the religious discrimination claims “serious allegations” but said it did not need to rule on them.