Refugee Executive Order Faces Legal Challenges
President Donald Trump’s refugee executive order has resulted in confusion and lawsuits which will continue to be resolved in the upcoming months. On Monday night, acting Attorney General Sally Yates directed Justice Department attorneys not to defend the executive order in court. President Trump quickly fired her. Dana Boente was promptly sworn in, and has instructed DOJ lawyers to “defend the lawful orders of our president.”
Cities preparing to receive Syrian refugees and others are having to change plans. Additionally, 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:
- People from the following countries may not enter the United States for the next 90 days: Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen
- Syrian refugees are banned from the United States indefinitely
- No refugees will be allowed into the United States for the next 120 days
- Only 50,000 (versus 110,000 last year) refugees will be allowed in the United States in 2017
- 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 of the United States broad power to ban classes of people for periods of time “as he shall deem necessary” – yet it 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.”
Numerous legal theories have been relied on and are being discussed as grounds for challenging 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, at 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.
About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.