Immigration Executive Order: Muslim Ban or Legitimate Protective Measure?


Xan Ingram

Since taking office on January 20th, President Trump has issued eight executive orders,[1] twelve memorandums,[2] and two proclamations.[3] Many of these actions have been incredibly contentious.[4]

In an article posted on donaldjtrump.com dated December 2015, entitled “Donald J. Trump Statement on Preventing Muslim Immigration,” now-President Donald Trump was quoted as saying:

Without looking at the various polling data, it is obvious to anybody the hatred [of radical Islamic groups towards the United State] is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again.[5]

A little over two years later, President Donald Trump proved he meant what he said when he promised to “Make America Great Again” by restricting immigration to the United States with his January 27, 2017 executive order entitled “Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States.”[6] Most notably, this executive order will (1) prevent resettlement into the United States for 90 days of refugees from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen; (2) halt all refugee resettlement under the United States Refugee Admission Program (USRAP) for 120 days; (3) indefinitely ban Syrian refugees from resettling in the United States; and (4) put a 50,000 cap on refugee resettlement during Fiscal Year 2017.[7] The order cites the terrorist attacks of September 11, 2001 as a rationale for the suspension, although there have been no fatal attacks from nationals of any of the seven banned countries in over twenty years.[8] This executive order is controversial because it has been seen as discriminatory: in 1882, the Chinese Exclusion Act banned immigration of Chinese citizens; in 1942, Executive Order 9066 set the legal foundation for Japanese internment camps; in 1979, President Jimmy Carter targeted Iranian immigrants as a result of the hostage crisis; and following 9/11, President Bush instituted a program requiring interviews at airports for men 16 years old and older who were from 25 different countries (24 of which were Muslim-majority).[9]

On Friday, February 3rd, the United States District Court for the Western District of Washington granted the State of Washington’s request for a temporary restraining order (TRO) against President Trump enjoining him from enforcing five sections of the executive order.[10] This decision applies to sections 3(c) (90-day ban on immigration from Libya, Yemen, Sudan, Syria, Somalia, Iraq, and Iran), 5(a) (suspension of the United States Refugee Admission Program), 5(b) (prioritization of religious minorities), 5(c) (indefinite suspension of Syrian refugee immigration), and 5(e) (grant of authority to Secretaries of State and Homeland security to grant entry on a case-by-case basis).[11] The United States government filed an emergency motion for an immediate administrative stay, and on Saturday, February 4, the Ninth Circuit Court of Appeals denied the motion.[12] The Ninth Circuit ordered the State of Washington to submit their opposition to the emergency motion by Sunday, February 5 at 11:59 p.m., and ordered the United States government to submit their reply motion by Monday, February 6 at 3:00 p.m.[13]

Most Recent Occurrence

On Tuesday, February 7th, the Ninth Circuit heard oral arguments from the State of Washington and the United States Government.[14] The State of Washington argued, among other things, that the executive order was a violation of the Establishment Clause and the United States argued that the President’s decision should be given deference because of the authority given to him to execute the Immigration and Naturalization Act of 1952.[15]

Rundown of the Executive Order

The executive order has the effect of prohibiting entry into the United States of nationals from Iraq, Iran, Yemen, Libya, Syria, Sudan, and Somalia for 90 days.[16] It also suspends the USRAP (U.S. Refugee Admissions Program) for 120 days.[17] After the 120 days, the USRAP will continue for countries that the Secretary of State, the Secretary of Homeland Security, and the Director of Intelligence determine to have adequate admission procedures.[18] The order puts a 50,000 cap on the number of refugees that may enter the United States during fiscal year 2017 (down 60,000 from the 110,000 former President Obama authorized in September 2016).[19] Entry of specifically Syrian refugees has been prohibited indefinitely, “until such time as [President Trump has] determined that sufficient changes have been made to the USRAP.”[20] Currently, some refugees may be admitted on a case-by-case basis, but only if admission “would not pose a risk to the security or welfare of the United States,” and “the person is a religious minority in his country of nationality . . . [and] admitting the person would enable the United States to [follow] international agreement[s], or when the person is already in transit and denying admission would cause undue hardship.”[21] The order grants state and local jurisdictions the maximum amount of discretion legally possible in determining placement or settlement in their jurisdictions.[22]  The order also suspends the Visa Interview Waiver Program, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview.[23] The exceptions to the suspension are “foreign nationals traveling on diplomatic visas, NATO visas, C-2 visas [used for UN official work], and G-1, G-2, G-3, and G-4 visas [used for NATO and designated international organization employees].”[24]

Responses to the Executive Order

The executive order only explicitly names Syria as an affected country, and fails to mention Iran, Libya, Somalia, Sudan, and Yemen.[25] This vagueness left the interpretation of the order up to the Department of Homeland Security, and created “widespread confusion across the country as airports struggled to adjust to the new directives.”[26] This confusion has been compounded by a string of lawsuits challenging the new order.[27] The day after the order was issued, two Iraqi citizens along with the ACLU, the International Refugee Assistance Project, and the National Immigration Law Center filed suit challenging the immigration order.[28] The result of the lawsuit was an injunction prohibiting enforcement of the executive order against holders of valid visas:

IT IS HEREBY ORDERED that the respondents, their officers, agents, servants, employees, attorneys, and all members and persons acting in concert or participation with them, from the date of this Order, are

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.[29]

In addition to this New York lawsuit, federal court suits have been brought in Washington, Virginia, California, and Massachusetts federal courts–all rulings came down in favor of the immigrants.[30]

Subsequently, the Department of Homeland Security released a statement supporting the order, which stated that the Department would be supporting and enforcing the order, highlighting the small number of travelers who were actually affected by the order.[31] The next day, then-Attorney General Sally Yates said that she was “not convinced that the defense of the Executive Order [was] consistent with [her duties to seek justice and stand for what is right], nor [was she] convinced that the Executive Order [was] lawful.”[32] She went on to say that under her authority the Department of Justice would not defend the Executive Order in court until she was “convinced that it [was] appropriate to do so.”[33] The President subsequently fired her and replaced her with Dana Boente, who issued a memorandum to the Department of Justice directing its employees to “do [their] sworn duty to defend the lawful orders of [the] President.”[34]

Future of the Executive Order

The order mandates an investigation by the Secretary of Homeland Security into information required from any country to “adjudicate any visa, admission, or other benefit under the INA [Immigration and Nationality Act].”[35] The Secretary will then submit a report within 30 days of the order (February 26). That report is to contain (1) information needed for adjudications and admissions, and (2) a list of countries that do not provide adequate information.[36] The Secretary’s report will then go to the Secretary of State, who will request that all foreign governments who do not provide adequate information regarding their nationals within 60 days.[37] After the 60 day period, the Secretary of State and the Secretary of Homeland Security will submit to the President a list of countries recommended for inclusion on a new proclamation which would prohibit the entry of nationals from those countries (following the same exceptions as the current suspension).[38] Pursuant to these future reports, more countries could be included in future entry bans.[39] The order will also be the starting point for implementation of new immigration screening programs.[40] Once the USRAP is reinstated, priority will be given to individuals who claim refugee status on the basis of religious persecution, where they are part of a minority religion in their country of nationality. Because all seven countries currently affected are Muslim-majority countries, the practical effect of the priority status will be to put those who are not Muslim before those who are.[41] This section of the order has been called into question because it could potentially violate the Establishment Clause of the Constitution, which prohibits the government from disfavoring any one religion.[42] The order may also run afoul of the Immigration and Naturalization Act, the statute that President Trump issued the order pursuant to, if it is found to discriminate against Muslim refugees.[43] Finally, the order requires the Secretary of Homeland Security and the Attorney General to publicize within 180 days (and every 180 days thereafter):

  • The number of foreign nationals in the United States who have been charged, convicted, or affiliated with terrorism-related activity,
  • The number of foreign nationals in the United States who have been “radicalized” since entry,
  • The number of gender-based violent acts against women in the United States by foreign nationals, and
  • “Any other information relevant to public safety and security.”[44]

As adjudications regarding President Trump’s executive order continue and are appealed, it will be fascinating to see how courts handle cases–weighing Constitutional protections against President Trump’s authority to protect United States citizens as he sees fit.


[1] Executive Orders, the White House, (last visited Feb. 8, 2017), https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders.

[2] Presidential Memoranda, the White House (last visited Feb. 8, 2017), https://www.whitehouse.gov/briefing-room/presidential-actions/presidential-memoranda?term_node_tid_depth=56.

[3] Proclamations, the White House, (last visited Feb. 8, 2017), https://www.whitehouse.gov/briefing-room/presidential-actions/proclamations.

[4] Evan Perez, et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN: Politics (last updated Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/.

[5] Donald J. Trump Statement on Preventing Muslim Immigration, Donald J. Trump (last updated Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration.

[6] Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).

[7] Id. at *8978-79; Evan Perez, et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN: Politics (last updated Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/.

[8] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8977 (Jan. 27, 2017); Greg Myre, Trump’s Immigration Freeze Omits Those Linked to Deadly Attacks In U.S., NPR (last updated Jan. 27, 2017), http://www.npr.org/sections/parallels/2017/01/27/511861645/trumps-immigration-freeze-omits-those-linked-to-deadly-attacks-in-u-s.

[9] Greg Myre, Trump’s Immigration Freeze Omits Those Linked to Deadly Attacks In U.S., NPR (last updated Jan. 27, 2017), http://www.npr.org/sections/parallels/2017/01/27/511861645/trumps-immigration-freeze-omits-those-linked-to-deadly-attacks-in-u-s.

[10] Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017).

[11] Id.; Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8978-79 (Jan. 27, 2017).

[12] Washington v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017) (order denying emergency motion).

[13] Id.

[14] Watch Live: Oral Arguments on Trump’s Executive Order Travel Ban, NBC New (Feb. 7, 2017), http://www.nbcnews.com/video/watch-live-oral-arguments-on-trump-s-executive-order-travel-ban-871993411611.

[15] Id. See U.S. Const. amend. I; 3 U.S.C.A. § 301 (1951); Immigration and Naturalization Act of 1952, 8 U.S.C.A. § 1185 (1952).

[16] Evan Perez, et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN: Politics (last updated Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/.

[17] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8979 (Jan. 27, 2017).

[18] Id.

[19] Id.; Bureau of Population, Refugees, and Migration, Proposed Refugee Admissions for Fiscal Year 2017 (Sept. 15, 2016), https://www.state.gov/j/prm/releases/docsforcongress/261956.htm.

[20] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8977 (Jan. 27, 2017)

[21] Id.

[22] Id. at *8980.

[23] Id. Certain statutory exceptions to the executive order exist.; See Visa Waiver Program, Department of State, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html.

[24] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8978 (Jan. 27, 2017); Directory of Visa Categories, Dep’t of State, https://travel.state.gov/content/visas/en/general/all-visa-categories.html.

[25] See Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8979 (Jan. 27, 2017).

[26] Evan Perez, et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN: Politics (last updated Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/.

[27] Mark Joseph Stern, Trump Versus Everyone, Slate (last updated Feb. 1, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/a_comprehensive_guide_to_the_lawsuits_against_trump_s_executive_order.html.

[28] Darweesh v. Trump, 2017 WL 388504, *1 (Jan. 28, 2017).

[29] Id. at *1.

[30] Litigation Regarding President Donald Trump’s Executive Orders Results in Conflicting Agency Statements and Dismissal of Acting Attorney General Sally Yates, Interpreter Releases Daily 1, 01-31-17 (Jan. 31, 2017).

[31] Id.

[32] Litigation Regarding President Donald Trump’s Executive Orders Results in Conflicting Agency Statements and Dismissal of Acting Attorney General Sally Yates, Interpreter Releases Daily 1, 01-31-17 (Jan. 31, 2017).

[33] Id. at *8977-78.

[34] Id.

[35] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8977 (Jan. 27, 2017).

[36] Id. at *8977-78.

[37] Id. at *8978.

[38] Id.

[39] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8978 (Jan. 27, 2017).

[40] Id.

[41] Id. at *8979.

[42] Adam Liptak, President Trump’s Immigration Order, Annotated, The New York Times (last updated Jan. 28, 2017), https://www.nytimes.com/2017/01/28/us/politics/annotating-trump-immigration-refugee-order.html.

[43] See 8 U.S.C. § 1152(a)(1)(A) (1952) (“no person shall receive any preference or priority or be discriminated against in the issuance of an immigration visa because of the person’s race, sex, nationality, place of birth, or place of residence”); Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8977 (Jan. 27, 2017).

[44] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8980 (Jan. 27, 2017).

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