Refugee Executive Order Challenged

President Trump’s refugee executive order has resulted in confusion and lawsuits which will continue to be resolved in the upcoming months. Cities have been affected by protests, airports have been overrun, and 16 attorneys general have spoken out against the executive order.

While not all aspects of the executive order are entirely clear, it includes the following:

  1. People from these countries may not enter the United States for the next 90 days:  Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen.
  2. Syrian refugees are banned from the United States indefinitely.
  3. No refugees will allowed into the United States for 120 days.
  4. Only 50,000 v. 110,000 refugees will be allowed in the United States in 2017.
  5. Refugees with religious-based persecution claims will be prioritized where they are of a minority religion in their country of origin.

Judges in New York, Boston, Virginia, and Seattle have issued temporary injunctions against various aspects of this executive order citing a variety of legal grounds. 

A wide swath of people will be affected by this executive order including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status. Adding to the complexity, the Immigration and Nationality Act appears contradictory. It gives the President broad power to ban classes of people for periods of time “as he shall deem necessary.” Yet it also states, “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.”

Numerous legal theories have been relied on and are being discussed as grounds for challenge this executive order.

Judges in New York and Boston prevented parts of the executive order from going into effect temporarily citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses. Due process generally requires that a person is afforded an opportunity to be heard (for example a hearing before an impartial decision-maker) before they are deprived of a right. Equal protection requires that the government not treat people differently on the basis of race, ancestry, or religion.

David Cole, Legal Director for the American Civil Liberties Union (ACLU), sees this executive order as essentially a Muslim-only ban on immigration which violates the Constitution’s Establishment Clause. While it doesn’t explicitly ban anyone on the basis of religion the fact that it applies to seven Muslim-majority countries and creates, practically speaking, preferences for Christians, is enough to make it unconstitutional, Cole argues.