Executive Order 13769 was signed by U.S. president Donald Trump on January 27, 2017, and quickly became the subject of legal challenges in the federal courts of the United States.Executive Order 13769, 82 Fed. Reg. 8977 (January 27, 2017).Alexander Burns, Legal Challenges Mount Against Trump's Travel Ban, New York Times (January 30, 2017). The order sought to restrict travel from seven Muslim majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The plaintiffs challenging the order argued that it contravened the United States Constitution, federal statutes, or both. On March 16, 2017, Executive Order 13769 was superseded by Executive Order 13780, which took legal objections into account and removed Iraq from affected countries. Then on September 24, 2017, Executive Order 13780 was superseded by Presidential Proclamation 9645 which is aimed at more permanently establishing travel restrictions on those countries except Sudan, while adding North Korea and Venezuela which had not previously been included.
Legal challenges to these orders were brought almost immediately after their issuance. From January 28 to 31 almost 50 cases were filed in federal courts.Special Collection: Civil Rights Challenges to Trump Immigration/Refugee Orders, University of Michigan Law School's Civil Rights Litigation Clearinghouse (last accessed January 31, 2017). The courts granted temporary relief including multiple temporary restraining orders (TRO) that barred the enforcement of major parts of the executive order. The chief TRO was issued by a federal court in the State of Washington and was explicitly nationwide in scope.Devlin Barrett & Dan Frosch Federal Judge Temporarily Halts Trump Order on Immigration, Refugees: Ruling applies nationwide to tens of thousands, Wall Street Journal (February 5, 2017).Adam Liptak, Where Trump's Travel Ban Stands, New York Times (February 5, 2017). That TRO specifically blocked the executive branch from enforcing provisions of the executive order that (1) suspend entry into the U.S. for people from seven countries for 90 days and (2) place limitations on the acceptance of refugees including "any action that prioritizes the refugee claims of certain religious minorities." The TRO also allowed "people from the seven countries who had been authorized to travel, along with vetted refugees from all nations, to enter the country." The Trump administration appealed the TRO to the U.S. Court of Appeals for the Ninth Circuit, which ruled against the government and allowed the stay to stand.Adam Liptak, Court Refuses to Reinstate Travel Ban, Dealing Trump Another Legal Loss, New York Times (February 9, 2017).
The second Executive Order,13780, removed Iraq from the list of targeted countries and allowed more exemptions. Portions of that order were blocked by a Hawaii federal judge on March 15. On June 26, the Supreme Court partially stayed some of the injunctions that had been put on the order by federal appeals courts earlier, allowing the executive order to mostly go into effect. Oral argument concerning the legality of the order was to be held in October 2017.
The parties challenging the executive orders included both private individuals (some of whom were blocked from entering the U.S. or detained following the executive order's issuance) and the states of Washington and Minnesota represented by their state attorneys general. Other organizations, such as the American Civil Liberties Union (ACLU), also challenged the order in court. Fifteen Democratic state attorneys general released a joint statement calling the executive order "unconstitutional, un-American and unlawful"Edward_Isaac_Dovere, Democratic state attorneys general vow action against refugee order, Politico (January 29, 2017). and seventeen states filed an amicus brief in support of the challenge to the order.Memorandum of Law of the States of New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, and the District of Columbia As Amici Curiae States in Support of Plaintiffs-Appellees, No. 17-35105 (9th Cir. February 6, 2017). Brief of the States of Pennsylvania, Massachusetts, New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, and Virginia, and the District of Columbia as Amici Curiae States in Support of Plaintiffs-Appellees. No. 17-35105 (9th Cir. February 7, 2017) (amended amicus brief, adding New Hampshire and North Carolina). Patrick McGreevy, California joins 15 other states going to court to challenge Trump's immigration orders, Los Angeles Times (February 6, 2017).
In response to the issuance of Presidential Proclamation 9645, the Supreme Court canceled its scheduled October hearing on the executive order that the proclamation replaced, declining to rule on its merits as it was about to expire. On October 17, a U.S. district judge in Hawaii issued an opinion saying that much of the proclamation is unconstitutional.Watson, Derrick K. (17 October 2017). "State of Hawaii, Ismail Elshikh, John Does 1 & 2, and Muslim Association of Hawaii, Inc. vs. Donald J. Trump, et al." United States District Court for the District of Hawaiʻi.de Vogue, Ariane. (17 October 2017). "Hawaii judge blocks Trump's latest travel ban". CNN. On June 26, 2018, the Supreme Court overturned the lower court opinion and upheld Proclamation 9645 in a 5–4 decision.
Background
President Donald Trump signed Executive Order 13769 on January 27, 2017. The order limited the number of refugee arrivals to the U.S. to 50,000 for 2017 and suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, after which the program would be conditionally resumed for individual countries while prioritizing refugee claims from persecuted minority religions. The order also indefinitely suspended the entry of Syrian refugees. Further, the order suspended the entry of alien nationals from seven Muslim-majority countries – Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen – for 90 days, after which an updated list will be made. The order allows exceptions to these suspensions on a case-by-case basis. The U.S. Department of Homeland Security later exempted U.S. lawful permanent residents (green card holders).
Section 3 of the order applies to over 218 million people, the total combined population of the seven countries named in the executive order. Fewer than 60,000 visas have been revoked under the travel ban. Section 5 applies to all countries. Over a hundred travelers were detained and held for hours without access to family or legal assistance. In addition, up to 60,000 visas were "provisionally revoked", according to the State Department.
State Department action
On January 27, 2017, Edward J. Ramotowski, deputy assistant secretary of state for visa services, signed a one-page directive "provisionally revoking" all visas, except diplomatic visas, issued to nationals of the seven countries listed in the order, subject to "case-by-case exceptions" that may be made.State Department notice revoking visas under Trump order released, Politico (February 1, 2017).All Visas Revoked For People From 7 Barred Countries, Per State Dept., WBUR (February 1, 2017).Noah Feldman, There's No Quick Fix to Trump's Immigration Ban, Bloomberg View (February 2, 2017). However, the State Department did not release this directive to the public, and it was unclear whether affected visa holders had been notified that their visas had been revoked. The directive did not come to public attention until late on January 31 (through a filing in the Boston legal action). The ACLU of Massachusetts, in a statement through its executive director, called the memorandum "deeply suspicious" and stated: "We find it deeply troubling that – just a few days from the first hearing in the nation on the executive order – the government is claiming to have revoked the visas of thousands of people without whispering a word about it to them, to the courts evaluating the executive order, or to anyone else." Noah Feldman noted that one effect of the State Department revocation could have been that "the Boston court order was in effect nullified even before it was issued" (since "[i]t was lawful to enter the U.S. in Boston if you had a valid visa, but you couldn't have a valid visa because the memo revoked the visas"), but a federal judge in Los Angeles issued an order prohibiting cancellation of valid visas, appearing to negate the State Department order.
Acting Attorney General statement and firing
After the executive order was signed, the acting attorney general of the United States, Sally Yates, directed the U.S. Department of Justice not to present arguments in court in defense of the executive order, writing in a memorandum that she was not convinced that the order was lawful.Mark Berman & Matt Zapotosky, Acting attorney general declares Justice Department won't defend Trump's immigration order, Washington Post (January 30, 2017). Trump responded by firing Yates and publicly denouncing her in a "scorched-earth" statement.Chris Cillizza, Donald Trump firing Sally Yates isn't the big story. How he did it is., Washington Post (January 31, 2017).Michael D. Shear, Mark Landler, Matt Apuzzo & Eric Lictblau, Trump Fires Acting Attorney General Who Defied Him, New York Times (January 30, 2017). Later that day, the Trump administration replaced her with Dana Boente, the United States Attorney for the Eastern District of Virginia.
Legal bases of the challenges
A variety of legal arguments—both constitutional and statutory—have been raised by the challengers to the executive order, including the states of Washington and Minnesota,Ariane de Vogue, The legal arguments around Trump's travel ban challenges, CNN (February 4, 2017). the American Civil Liberties Union,David Cole, We'll See You in Court: Why Trump's Executive Order on Refugees Violates the Establishment Clause, Just Security (January 28, 2017). and the Council on American-Islamic Relations.Anthony Zurcher, Is Trump's immigration order legal?, BBC News (January 31, 2017).
Statutory challenges Statutory challenges are based on the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA). The INA deals with U.S. immigration law, while the APA governs administrative processes and provides, among other things, that actions performed by government agencies cannot be arbitrary, capricious, or unsupported by evidence.
Trump, in his executive order, relied on a provision established in 1952 under Section 212(f) of the INA, which states that, "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." This provision gives broad powers to the President in regards to the entry of aliens. But a different provision enacted under an amendment in 1965 establishes 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 non-discrimination clause is one basis for the legal challenges under the argument that while the President was given broad powers in 1952, such powers were eventually limited in 1965.