'A wave of litigation': How Trump's immigration order could be struck down
Experts lay out 4 ways the order closing borders to 7 Muslim-majority countries might be challenged
An injunction put in place after U.S. President Donald Trump signed an executive order that closed U.S. borders to people from seven Muslim-majority countries on the weekend is the start of what's likely to be a slew of constitutional and statutory challenges, legal experts say.
Enforcement of the order, which unleashed chaos at airports and sent families into immigration limbo, appeared to still be taking shape as the weekend drew to a close, with Trump's own White House chief of staff contradicting himself on a major exclusion for green card holders.
"This seems to be just the beginning of a wave of litigation over this order's potential constitutional challenges," says Yvonne Tew, a constitutional law professor at Georgetown Law school in Washington, D.C.
Legal scholars point to constitutional and statutory challenges that could strike down the executive action that would affect some 218 million people from Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen over 90 days. The order also puts an indefinite ban on Syrian refugees.
Experts say the possible legal challenges could draw upon:
- The Due Process Clause of the Fifth Amendment of the U.S. Constitution, which protects against depriving anybody's liberty "without due process of the law."
- The Equal Protection Clause of the Fifth Amendment, which bars the government from discriminating individuals from "equal protection of the laws."
- The Establishment Clause of the First Amendment, which prohibits government actions that favour any one religion.
- The 1965 Immigration & Nationality Act, which bans discrimination against immigrants on the basis of race, nationality and place of birth.
Tew said Trump's senior cabinet might still be working out the kinks in a policy that was reportedly not submitted to the Department of Homeland Security for guidance.
There seemed to be significant confusion, for example, around the question of whether green card holders from the seven affected countries would be subject to the ban.
White House Chief of Staff Reince Priebus said on NBC's Meet the Press on Sunday that "moving forward," the ban "doesn't affect" green card holders, but he would not clarify what "moving forward" meant. Priebus's comment seemed to be a departure from earlier statements by White House and Homeland Security officials, that green card holders would be impacted or subject to case-by-case waivers.
"The implementation is amorphous at this point," said Tew.
After an outcry, Homeland Security Secretary John Kelly issued a blanket waiver later on Sunday, allowing green card holders to enter the United States.
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Tew said there was "massive uncertainty" after reports emerged that key agencies such as the Department of Homeland Security, the Justice Department and the State Department were not consulted on Trump's executive order.
'Differential treatment' test
As worldwide protests related to the Trump directive rage on, four Federal Court judges — in New York, Virginia, Washington and Massachusetts — issued rulings to halt deportations.
The first challenge to the executive order came from U.S. District Judge Anne Donnelly on Saturday night. In her decision, widely interpreted as applying nationally to all petitioners, Donnelly wrote that two Iraqis detained at John F. Kennedy International Airport in New York City with lawful documents had a "strong likelihood of success" in showing their rights to due process and equal protection would be violated if they were deported.
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The Iraqi refugees, Hameed Khalid Darweesh and Haider Sameer Abdulkaleq Alshawi, who had worked with U.S. troops as interpreters, were released Saturday night.
An equal protection element might be argued on the grounds that removal of the travellers is based on their national origin. An executive order that shows "differential treatment" towards a particular racial or religious group could violate an equal protection principle, said John Mikhail, a constitutional law expert at the Georgetown school.
The American Civil Liberties Union launched a class action suit, leading to the injunction in Brooklyn on behalf of the two Iraqi interpreters. The ACLU is also expected to file a suit on grounds that the Trump order breaches the Establishment Clause, which prohibits the government establishment of religion.
According to a 1982 Supreme Court decision, the Establishment Clause holds that "one religious denomination cannot be officially preferred over another." In an interview on Friday, Trump was asked by the Christian Broadcasting Network whether persecuted Christians would be viewed as "priority" refugees.
"Yes," the president replied. "They've been horribly treated."
It's not discriminating based on religion or race or country of origin. It's treating certain countries different because the circumstances within the country are different.- Jim Bopp , constitutional lawyer
The concern is that Muslims would be "disfavoured" as part of a presidential action "motivated by animus," Mikhail said. The executive policy's intent could also be inferred by Trump's statements during the U.S. presidential camp that called for a Muslim registry and immigration ban.
While there may be "ample grounds" for a constitutional challenge, Philip Bobbitt, a national security and constitutional scholar at Columbia University in New York City, believes a stronger case might be rooted in legislation passed by Congress 52 years ago.
Challenge to statute
The 1965 Immigration & Nationality Act forbids discrimination of immigrants based on "nationality, place of birth, or place of residence" — statutory reform that came from the isolationist attitudes following the First World War. Bobbitt sees echoes of the old policy in Trump's executive order.
"That was, dare I say, an 'America First' policy [that] virtually prohibited African and most Asian immigration, and prioritized immigration from Europe," said Bobbitt. "We changed that completely, saying it would be unlawful to exclude people on the basis of their national origin."
Courts almost always prefer a statutory solution to a constitutional solution, which requires an amendment to change it. Statutory solutions are simpler and allow Congress to weigh in, rather than to break new constitutional ground.
Constitutional lawyer Jim Bopp, a former Republican National Committee vice-chair, sees no reason Trump's executive order shouldn't stand.
Criticizing what he called an "open borders" legal approach, Bopp said the 1965 Immigration and Nationality Act could be overruled by a matter of highest importance. In this case, he said, the administration's priority — protecting national security — would take precedence over "hogwash" discrimination concerns.
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"It's not discriminating based on religion or race or country of origin. It's treating certain countries different because the circumstances within the country are different," said Bopp. "These are war-torn places … where terrorist organizations have gained a foothold."
Iran hostage example cited
That doesn't settle the matter of why other non-Muslim majority countries, such as France and the United Kingdom, which have also produced jihadis or terror suspects, might be excluded from the list of seven nations.
Bopp cited former president Jimmy Carter, who restricted Iranian immigration during the 1979-1981 Iran hostage crisis. That case was one of diplomatic retaliation to an adversarial government, and the ban was lifted when the crisis ended.
Mae Ngai, a legal historian with Columbia University, drew parallels between Trump's executive action and dark periods in American history. They include the Chinese Exclusion Act in 1882 and the rationale for incarcerating Japanese-Americans in internment camps during the Second World War.
"It's always a fundamental basis for wholesale discrimination, this appeal to national security," she said, noting that other Middle Eastern countries where Trump has business dealings, such as Saudi Arabia, are not on the list.
When asked by Meet the Press host Chuck Todd why countries such as Pakistan, Saudi Arabia and Egypt were not included in the ban, even though they have produced more individuals who have committed terrorist attacks in the U.S. than the nations that were included, Priebus said the administration would eventually consider broadening the list.