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Challenges to President Trump’s Travel Ban

Acker + Associates P.C. Newsletter


Challenges to President Trump’s Travel Ban:

What Is Being Banned and Is It Legal?

Photo: Randal Acker’s view of riot police assembling in anticipation of protests at PDX airport Sunday evening (January 29, 2017).

On Friday, President Trump signed an executive order that bars nationals from seven Muslim-majority countries (Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen) from entering the United States, bans refugees from entering from any country for four months, and bans refugees from Syria indefinitely.  It also suspends the Visa Interview Waiver Program–which had allowed nonimmigrant visa seekers to forego an in-person interview–and requires a review of nonimmigrant visa reciprocity agreements with other countries.

Trump relies on the executive powers of the Immigration and Nationality Act (INA).  The INA allows the President to suspend entry of aliens or a class of aliens if the President finds such entry to be detrimental to the interests of the United States.  (The seven countries were first identified by Obama in 2015 when he imposed travel restrictions under the INA.)

While the INA is broad, it also prohibits discriminating in the issuance of an immigrant visa because of a person’s nationality, place of birth, or place of residence.  Arguably, Trump is violating all three.  In addition, U.S. and international law prohibit deportation of non-citizens who will likely face torture or persecution if returned home.

If the ban is viewed as targeting Muslims, it arguably violates the First Amendment freedom of religion clause.  However, nowhere in the order does it reference religion.  A successful challenge on such grounds would likely require proving the intent behind the order.  The order singles out countries with Muslim majorities.  Also, in his campaign rhetoric, Trump declared his intent to limit, if not bar, Muslims from entering the United States.

Due Process
Arguably, those detained in U.S. airports are being denied procedural due process.  By being placed on an airplane and sent back to one of the seven countries, they are being denied a hearing.  Courts usually balance the interests of the individual and the government in deciding such due process challenges.

What’s Next
At least five courts have already granted temporary relief against the order.  (However, many government agents have defied the courts as they continue to detain and deport individuals.)  Despite the backlash from members of Congress, Trump has defiantly stood by his order.  Ultimately, our judicial branch will need to decide upon the constitutionality of the order.  Despite the seemingly egregious unconstitutionality of the order, courts tend to defer to the President on immigration issues that involve national sovereignty and foreign relations.