On Friday, President Trump issued an executive order titled, “Protecting the Nation from Foreign Terrorist Entry Into the United States.” The order suspended entry of all refugees to the United States for 120 days, blocks Syrian refugees indefinitely, and barred citizens of seven Muslim-majority countries from entering the U.S. for 90 days. The countries listed are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It also barred green card holders from those countries - lawful permanent residents - from re-entering the U.S.
Within hours, protests erupted at the nation’s airports, where an estimated 375 people were detained upon arrival to the United States. The American Civil Liberties Union filed a lawsuit on behalf of Hameed Khalid Darweesh, who was traveling on an Iraqi special Immigrant Visa and was detained by U.S. Customs and Border Protection at JFK Airport in New York. Darweesh was an electrical engineer and contractor for the U.S. government from 2003-2010. He also served as an interpreter for the U.S. Army’s 101st Airborne Division in Iraq.
Judge Ann M. Donnelly of the U.S. District Court for the Eastern District of New York heard arguments for Darweesh v. Trump on Saturday evening. In the courtroom, ACLU lawyers testified that one person detained at an airport was being put on a plane to be deported back to Syria at that very moment. Judge Donnelly granted an emergency stay of removal, enjoining the federal government “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.”
Judge Donnelly ordered the Emergency Motion for Stay of Removal because there is a strong likelihood that the removal of detainees would violate “their rights to Due Process and Equal Protection guaranteed by the United States Constitution”. She added that “there is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury” to those subject to the executive order, and the issuance of the stay “will not injure the other parties interested in the proceeding”. Judge Donnelly’s order was not limited to her jurisdiction, making it a nationwide injunction. Federal judges in three other states issued similar orders, though none addressed the broader legality or constitutionality of Trump’s order. Future courts will hear arguments on both sides.
Trump’s executive order, in addition to violating fundamental American values, almost certainly runs afoul of the Establishment Clause of the First Amendment to the Constitution of the United States and the Immigration and Nationality Act of 1965.
The Establishment Clause
The Establishment Clause of the First Amendment reads: “Congress shall make no law respecting an establishment of religion…” In Larson v. Valente, the Supreme Court ruled, “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
Trump’s executive order does just that. The selective ban on immigration from seven Muslim-majority countries targets the religion of Islam in both its intent and effect.
The order’s central legal flaw is denomination favoritism by prioritizing Christian refugees. Here is the relevant text:
“Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
While the order does not explicitly refer to Christianity, its signatory has helpfully aided the case against its constitutionality. To clear up any confusion that the order officially prefers Christians over Muslims, Trump plainly stated on the Christian Broadcasting Network on Friday that his administration is giving Christians priority because they suffered “more so” than members of other religious groups. “So we are going to help them,” he explained. He added in a tweet on Sunday, “Christians in the Middle-East have been executed in large numbers. We cannot allow this horror to continue!” Under the First Amendment, as interpreted by the Supreme Court, Trump’s order violates the “clearest command” of the Establishment Clause.
Amid the chaos caused by the order, the president issued a statement on Saturday saying, “This is not a Muslim ban.” However, courts are likely to come to the conclusion that simply saying that after over a year of telegraphing anti-Muslim intent does not make it so. Some supporters have argued that the exclusion of countries like Indonesia and Malaysia from the order preclude it from being a “Muslim ban.” On the contrary, President Trump need not ban every Muslim from entry to use the label of “Muslim ban.” His surgical targeting of Muslim populations in Muslim-majority countries earns that label for his order.
In Church of Lukumi Babalu Aye v. City of Hialeah, the Supreme Court struck down a local Florida ordinance against animal sacrifice because it found the law was specifically intended to target the Santeria religion. The sect had recently moved into the area and practiced animal sacrifice. While the ordinance did not explicitly mention the religion by name, the Court took into account surrounding circumstances that made its intent to single out the Santeria religion clear.
The circumstances surrounding Trump’s order are crystal clear. In December 2015, the Trump campaign issued a press release declaring, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” In March 2016, Trump said, “Frankly, look, we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”
Further, Trump advisor Rudy Giuliani volunteered the following insight on Fox News over the weekend: “When [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” With these words, Giuliani and Trump helped create the circumstantial evidence that will be essential in establishing intent in future proceedings.
In both its intent and effect, the order officially targets Islam and favors Christians, violating the First Amendment.
Immigration and Nationality Act of 1965
In the order, Trump points to a provision in 1952 Immigration and Nationality Act (INA) that states, “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.”
However, in 1965, Congress amended the 1952 law to eliminate national origin, race, and ancestry as basis for immigration. The cornerstone of these changes became 8 U.S.C 1152, which provides 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.” This order does just that.
However, Trump’s case will likely rest on the difference in terminology between the 1965 amendment, which requires nondiscrimination on national origin grounds for “visas”, and the 1952 law, which refers to “entry”. Professor of Law at the University of Baltimore Charles Tiefer writes that courts will not find this distinction persuasive. “It makes little sense that Congress would enact a breathtakingly sweeping principle of not discriminating on national origins in one law, and not caring if that principle is completely gutted by the ‘visa-entry’ procedural distinction.”
Indeed, the law was passed at the height of the Civil Rights Movement of the 1960s, when immigration laws that favored certain nations over others were seen as an embarrassment. President John F. Kennedy called the policies associated with the 1952 law “nearly intolerable.” After Kennedy’s assassination, President Lyndon Johnson signed the bill into law on Liberty Island in front of the Statue of Liberty, a symbol of the values violated by Trump’s executive order.
If the intent of the location of the bill signing was unclear, a plaque at the base of the Statue of Liberty explains, “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!” Trump’s order violates the letter and spirit of the law, subverting the principles that are reflected in and reinforced by both the INA in its current form and the Constitution.
Going Forward
The judicial orders, issued not long after Trump signed his ban, are just the first steps in litigation that may last for years. While courts only acted to temporarily maintain the status quo, they will soon face broader questions about whether Trump’s executive order was lawful. 16 state attorneys general released a statement Sunday calling the order unlawful. They promised immediate action and expressed confidence that the order will ultimately be struck down by the courts.
“The courts can serve as a bulwark against these excesses,” said Anthony D. Romero, the Executive Director of the ACLU. “Litigation is going to be a key tool for either undoing these policies or slowing them down.”
Groups like the ACLU, state attorneys general, and protesters worldwide have their work cut out for them during these difficult times. However, the law is on their side to do more than just slow Trump down. With the right petitioner, the judiciary will have compelling evidence, sound reasoning, and the ultimate authority to halt and reverse Trump’s unconstitutional, un-American, and unlawful immigration ban.