The Legalities Behind President Trump’s Executive Order to Ban Immigration

Image courtesy of Pixabay

 

By Drew Rummel, Staff Writer

Arguably, the hottest topic in political news in the past two weeks has been the executive order that President Donald Trump issued, which temporarily banned immigration into the United States from seven overseas countries. The ban, if allowed, would halt immigration from those countries for 90 days and admission of all refugees for 120 days.[1] The controversy centers on the motive of the ban. Some allege that the ban is fueled by religious discrimination against Muslims.[2] Supporters of the ban maintain that it is not a ban on Muslims, but an immigration ban with the top priority of keeping Americans safe from terrorism.[2]

Attorney generals from 16 states across the country are arguing that the ban would have an adverse effect on the states’ residents, businesses, and universities.[3] A temporary restraining order has been issued by a federal judge in Seattle[4] and was upheld by the Ninth Circuit Court of Appeals.[5] As of now, the ban is not being enforced.

An executive order is an official statement from the President that directs federal agencies in how to use their resources.[6] The presidential power to issue executive orders fall under “executive actions” provided for in Article II of the U.S. Constitution.[4] Executive orders are considered to be binding but are subject to legal review,[4] as we have seen in the aforementioned challenges. Congress and the courts can overrule executive orders as part of our system of checks and balances.[7]

So, what will happen next? The Trump administration can appeal to have the decision reviewed en banc, allowing all of the Ninth Circuit judges to participate in the review as opposed to only a panel of three.[8] Alternatively, they can file a writ of certiorari to the U.S. Supreme Court asking it to review the case, which would present the case to the Court to decide if it will review it or not.[8] Or, Trump may rewrite the ban,[9] which he has reportedly considered.[10] The Ninth Circuit, however, has already stated that some of the government’s proposed concessions would not be sufficient to uphold the ban.[10]

Another factor weighing against such a ban is Trump’s campaign statements.[10] Some allege that these statements are discriminatory against the Muslim religion and, no matter what he or his order might say regarding the motivation behind it, will cause any such ban to be viewed as discriminatory.[10] The Trump administration will have a tough road ahead to implement such a ban, regardless of its intent.

 

Sources


[1] “Trump’s immigration ban sends shockwaves,” http://www.cnn.com/2017/01/28/politics/donald-trump-executive-order-immigration-reaction/.

[2] “Blunt on board with Trump’s controversial immigration ban,” http://www.news-leader.com/story/news/politics/2017/01/29/blunt-board-trumps-controversial-immigration-ban/97221124/.

[3] “Healey, 15 other state AGs, join lawsuit against Trump ban,” https://www.bostonglobe.com/metro/2017/02/06/healey-other-state-ags-join-washington-lawsuit-challenging-trump-immigration-ban/l7xYS2jGycNpi87tUYZAtM/story.html.

[4] “Homeland Security suspends actions associated with Trump’s travel ban; ‘standard policy’ now in effect,” http://www.cnbc.com/2017/02/03/seattle-federal-judge-grants-temporary-restraining-order-on-immigration-ban-on-nationwide-basis.html.

[5] “Federal Appeals Court Upholds Stay On Trump’s Immigration Order,” http://www.npr.org/2017/02/09/514399835/federal-appeals-court-upholds-stay-on-trumps-immigration-order.

[6] “What is an executive order? And how do President Trump’s stack up?” https://www.washingtonpost.com/news/the-fix/wp/2017/01/27/what-is-an-executive-order-and-how-do-president-trumps-stack-up/?utm_term=.f7228a3ef500.

[7] “Executive Orders 101: What are they and how do Presidents use them?” http://blog.constitutioncenter.org/2017/01/executive-orders-101-what-are-they-and-how-do-presidents-use-them/.

[8] “Appeals: The Process,” http://www.uscourts.gov/about-federal-courts/types-cases/appeals.

[9] “US appeals court upholds suspension of Trump travel ban,” http://www.cnbc.com/2017/02/09/appeals-court-to-issue-decision-on-trump-travel-ban-later-today.html.

[10] “Trump considers writing ‘brand new’ immigration order,” https://www.washingtonpost.com/world/national-security/white-house-considers-rewriting-trumps-immigration-order/2017/02/10/ddcf5a6a-efb5-11e6-b4ff-ac2cf509efe5_story.html?utm_term=.e3d8cd02fe36.

Comments

comments