re Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

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He signed the Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The EO, among other actions, temporarily suspends the operation of the U.S. Refugee Admissions Program and indefinitely bans the entry of Syrian refugees; temporarily suspends entry of all persons from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen; and institutes exceptions and preferences for refugees who are members of a religious minority and claim religious persecution.

More specifically:

  • The EO suspends for 90 days entry into the United States for persons from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen.
  • The EO suspends the U.S. Refugee Admissions Program (USRAP) for 120 days, with an exception for individuals whose admission is “in the national interest,” including individuals who are members of minority religious groups and are facing religious persecution.
  • The EO also provides for USRAP, upon resumption, to prioritize refugee applications made based on religious persecution, but only for those who are members of a minority religion in their country.
  • The EO suspends entry of Syrians as refugees until such time as President Trump shall decide that refugee vetting procedures are adequate.

Objections to the above-detailed provisions of the EO can be raised as follows:

  • In discriminating against persons without lawful justification based on religion and country of origin, these provisions likely violate equal protection under the Fifth Amendment, as well as provisions of the Immigration and Nationality Act and the Administrative Procedure Act.
  • In failing to give and denying affected persons minimal due process protections, these provisions likely violate procedural due process under the Fifth Amendment.
  • In giving unlawful official preference to certain religions, some of these provisions likely violate the Establishment Clause of the First Amendment.

Numerous legal cases alleging such challenges to this EO were brought in federal courts around the country. In the days following the EO, at least seven federal district courts temporarily halted the implementation of the EO, in whole or in part, though one of the courts denied a motion to extend a temporary restraining order (“TRO”). See Darweesh v. Trump, 1:17-cv-00480 (E.D.N.Y. Jan 28, 2017) (order granting temporary stay of removal); Aziz v. Trump, 1:17-cv-116 (E.D. Va. Jan. 28, 2017)(order granting TRO)); Louhghalam v. Trump, 17-cv-10154 (D. Mass. Jan. 29, 2017)(order granting TRO), motion to extend TRO denied, 17-cv-10154 (D. Mass. Feb. 3, 2017); Vayeghan v. Kelly, 17-0702 (C.D. Cal. Jan. 29, 2017)(order granting TRO);, Mohammed v. Trump, 2:17-cv-00786-AB-PLA (C.D. Cal. Jan 31, 2017)(order granting motion for TRO and/or preliminary injunction); Arab American Civil Rights League v. Trump, 2:17-cv-10310 (E.D. Mich. Feb. 2, 2017) (order granting partial permanent injunction); State of Washington v. Trump, 2:17-cv-00141-JLR (W.D. Wash. Feb. 3, 2017) (order granting TRO), emergency motion for stay of TRO denied, 2:17-cv-00141 (9th Cir. Feb. 9, 2017).

In State of Washington v. Trump, Judge James L. Robart granted a temporary restraining order. On February 9, 2017, a three judge panel of the United States Court of Appeals for the Ninth Circuit denied President Trump’s emergency motion for a stay pending appeal of the TRO issued by Judge Robart, holding that “the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury.”

The Court’s decision rejected the Government’s assertion that “the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections,” finding, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structures of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the [r]esolution of litigation challenging the constitutional authority of one of the three branches.” (Citations and quotations omitted.) The Court further stated, “[A]lthough courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

Additionally, in weighing the relevant factors to determine if a stay should be issued, the Court took into account that “[t]he Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

In response to the Ninth Circuit’s decision, on February 16, 2017, the Government filed a brief with the Court stating, “Rather than continue this litigation, the President intends in the near future to rescind the order and replace it with a new, substantially revised executive order. …”

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