Trump’s Latest Executive Order: A De Facto Muslim Ban Or Constitutional Exercise of Executive Power?

Trump tweeted Sunday that the order was “not about religion — this is about terror and keeping our country safe.” The recent Executive Order signed by President Trump provides for a temporary travel ban into the United States for citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days and bars all refuges from anywhere in the world for 120 days. The Executive Order states that such action is necessary to protect the US as “[n]umerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.” However, if protection from known countries with terrorist ties was the purpose, why were Saudi Arabia and Egypt (where the founders of Al Qaeda and many other jihadist groups have originated) left off the list? Could President Trump have been influenced by the Trump Organization’s business ties to those countries?

The 9/11 attackers were from Saudi Arabia, the United Arab Emirates (UAE), Lebanon and Egypt, none of which are included in the 90-day ban. Although “[i]t appears that existing restrictions in place during the Obama administration informed Mr. Trump’s list”, both Egypt and Saudi Arabia were left out of the travel ban despite their ties to the 9/11 terrorists and their inclusion on the list of Tier 1 Countries of Particular Concern by the US Government. Interestingly, the Trump Organization has business ties to both Egypt and Saudi Arabia, which some speculate may have influenced the decision to leave those countries off the list.

The Trump Organization’s business dealings aside, many groups are calling the Executive Order unconstitutional. These groups point to a provision in the Executive Order that provides an exception for religious minorities applying for visas; this exception, they argue, is a violation of the Establishment Clause as such may be tantamount to a “[p]otential religious test by prioritizing refugees facing religious persecution, which experts believe was intended to help Christians coming from predominantly Muslim countries.” The American Civil Liberties Union has filed suit on behalf of two Iraqi refuges that were detained at JFK International Airport alleging violations of the Establishment Clause as well as violations of the Due Process Clause of the Fifth Amendment. Further, although a president’s power as outlined in the Immigration and Nationality Act (INA) is broad in the immigration context, the INA also states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” David Bier, an immigration policy analyst at the libertarian Cato Institute, has stated that that “Trump’s new policy would run afoul of at least one if not all three of (the) restrictions — nationality, place of birth, or place of residence — depending on how it was applied.” Despite the quick turnaround on the filing of these lawsuits, all these challenges will take time, time that many currently stuck in airports across the country do not have right now.

For those detained at airports, immigration and civil rights lawyers around the country have been pouring in to assist by filing habeas corpus petitions. As habeas review does not depend on underlying due process rights, judges instead focus on whether a detention is authorized. Based upon these filings, several federal judges have issued temporary restraining orders against the Executive Order and Judge Ann Donnelly from the Eastern District of New York recently issued a temporary nationwide stay, blocking the government from removing the immigrants that are currently being detained at airports around the country. However, these are only temporary measures, and many constituents are calling for President Trump to fix the order now.

Even those supporters in Congress of some travel restrictions have criticized the Executive Order and want to see it revised, including exemptions for “green card holders and those who’ve assisted the U.S. armed forces.” U.S. Senators John McCain (R-AZ) and Lindsey Graham (R-SC) have stated in a press release that although they support the government’s “responsibility to defend our borders” the US “must do so in a way that makes us safer and upholds all that is decent and exceptional about our nation.” Both Senators believe the Executive Order will become “a self-inflicted wound in the fight against terrorism.” And they may be right. Experts have said that such executive action has only given ISIS and other anti-Western terrorist organization more fuel for the fire of their movement and may assist in persuading more people for their cause.

For me and many others around the world watching these events unfold, whether Trump has the executive power to enact such sweeping immigration reform is largely irrelevant. The executive Order signed by former President Roosevelt interning Japanese Americans (62% of which were US citizens) was also constitutional and justified at the time by fear and protectionist sentiment. However, just because something may be legal and within the scope of executive authority does not make it right or just.

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