President Trump’s Executive Order of January 27, the so-called “Muslim Ban,” has already been the target of widespread condemnation, outrage, and protest. In what has to be some kind of record, within its first seventy-two hours the order’s implementation had been blocked in four federal courts: the Eastern District of New York, the Eastern District of Virginia, the Western District of Washington, and the District of Massachusetts. The last of these goes one step further than the rest in stating that federal authorities may neither detain nor remove those lawfully seeking entry to the United States. Other decisions cover only removal, leaving affected parties stranded at the airport. This immediate and decisive resistance from the bench is especially striking given that the courts tend to give wide berth to the executive branch when national security is invoked.
There is little doubt that this is a clumsy and counter-productive measure that will disrupt the lives of many innocent people. To be fair, calling it a “Muslim Ban” is imprecise. The order has been applied to seven countries so far: Iraq, Iran, Lybia, Somalia, Sudan, Syria, and Yemen. Muslims from Saudi Arabia, or Pakistan, or China are not affected--or at least not yet affected. So it does not apply a religious test to people seeking entry to the US, which is one potential legal problem with the measures Trump proposed during his campaign.
It also frames itself as a temporary measure necessary to national security in a post-9/11 world: its provisions have limited time frames, and tend to call for specific agency actions that would allow the entry ban to be lifted. This, too, gives it legal cover. The executive has broad discretion to take emergency action, and foreign nationals always have limited protection under US law. For this reason, the order will likely survive challenges based on the Hart-Cellar Act, also called the Immigration and Nationality Act (INA) of 1965, which states that “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence” (PL 89-236, 2 (a)). On the face of it, this would seem flatly to contradict Trump’s “Foreign Terrorist Entry” order, but the order itself cites 8 USC 1182(f): “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This provision has been used to bar admission for various classes of aliens by several recent presidents, including Reagan, George W. Bush, and Barack Obama. Barring the nationals of seven countries is a much more sweeping action than anything done by these presidents, but legally the door is open for a president to make this kind of move, and it is far from certain that the courts will find the INA to take precedence over the 8 USC 1182 (f).
So why are the government’s lawyers 0 and 4 so far? Because even if its broad aims are legal, Trump’s order is filled with sweeping and imprecise language. As Benjamin Wittes writes in this scathing post at Lawfare, “one of the reasons there’s so much chaos going on right now, in fact, is that nobody really knows what the order means on important points.” Even as the main target of the executive order seems to be visa issuance, it also denies nationals from affected countries “other immigration benefits” (sec. 3). What are those? The phrase could be construed to mean that foreign nationals within the US might have their applications for renewal or change of visa status rejected. This combined with denying “immigrant or nonimmigrant entry” (3(c)) creates a very broad net that catches lawful permanent residents, commonly called green-card holders—the Virginia case was filed on behalf of a class of 50-60 lawful permanent residents who had been detained at Dulles International Airport.
Down the road, one can also imagine the courts objecting to provisions on handling refugees that are clearly designed to advantage Christians and disadvantage Muslims. Though neither religion is explicitly named in the executive order, it is hardly subtle about its intentions: once the admission of refugees recommences after a 120-day stoppage, priority will be given to cases of “religious-based persecution.” But here’s the rub: you do not qualify as being persecuted unless you are a member of a minority religion within your nation of origin. It is doubtful that a minority sect within a majority religion would qualify, even though John Kerry’s State Department declared ISIS responsible for genocide against “Yazidis, Christians, and Shiite Muslims.” Would Shiites ever be able to claim refuge from religious persecution under Trump? It seems doubtful. But the order also suggests that all Syrians will be indefinitely denied refuge. Even as section 5(b) would seem to favor Christians persecuted within Syria, section 5(c) denies entry to all Syrian nationals regardless of religion. So it is imprecise to say that this administration sees only Christian suffering; it sees no suffering at all. Once the Trump administration does move to develop a refugee policy, the courts will likely scrutinize its provisions to assure that they do not favor a particular religion.
This much to lend more detail to what has been widely reported. What has not been reported are the provisions in the order that can have serious domestic implications. In the midst of chaos at the airports, the section of the order on transparency and data collection has been largely ignored. But it is troubling: the Secretary of Homeland Security will issue a public report twice annually on the number of foreign nationals who have been charged with terror-related offenses; who have been “radicalized after entry into the United States and engaged in terrorism-related acts”; and who have been found guilty of “gender-based violence, including honor killings.” The categories here are again hopelessly vague. What qualifies as radicalization? Or as a terrorism-related act? Will such a report compare foreign nationals to the general US population in reporting on instances of radicalization or gender-based violence? That would seem to fly in the face of the intent, which is to use these reports to foment this administration’s various brands of paranoia and hatred.
It has also been noted that the order does not include Muslim-majority nations like Turkey, or even Egypt and Saudi Arabia, whose nationals played key roles in planning and executing the 9/11 attacks. One justification that has been floated is that Trump has business interests in these countries. I find this unpersuasive. Trump knows that Turkey, Egypt, and Saudi Arabia will be very eager allies indeed in a ruthless war against radical Islam, as a means of securing their authoritarian rule at home and of expanding their influence in the region. While it is exceedingly difficult to predict what this president will do next, it looks like we are seeing him ready himself for war: the entry ban was quickly followed by a memorandum declaring it “the policy of the United States that ISIS be defeated.” Combined with a renewed commitment to black sites, to torture, and to indefinite detention at Guantánamo, we can see preparations for an offensive underway: this administration seems to expect that it will soon have fresh batches of detainees to send to Guantánamo. The entry ban seems designed in part to prevent retaliation for the crimes Trump knows he will soon commit.
The above is the first post on the blog Executive Watch, which will be devoted to legal analysis of the Trump Administration’s executive actions.