Idaho Law Blog
On January 27, 2016, President Donald Trump shocked the world by ordering a travel and refugee ban. This executive order specifically bars citizens from seven majority-Muslim countries (Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia) from entering the United States for 90 days, regardless of their visa category. It also suspends admission of refugees from any country for 120 days, and it indefinitely suspends refugees from Syria.
Before elected, President Trump called for a “total and complete” ban on Muslims coming into the United States, according to one of his campaign press releases, but many thought these types of statements were all talk. The executive order is not a ban on all Muslims, but it has certainly sparked controversy and questions of religious tolerance. Many claim it is un-American in that it conflicts with our rich immigrant heritage. Many claim it is also illegal and unconstitutional, and various suits have been filed across the nation.
In the days following the executive order, federal judges in various states exercised their judicial powers to prevent full implementation of the executive order, with many issuing temporary restraining orders (TROs). On February 3, 2017, a federal court in Massachusetts declined to renew a TRO, stating the American Civil Liberties Union (ACLU) had not shown the need to extend the TRO. This same day, however, a federal court in Washington State granted a temporary restraining order that applies to the entire nation. The next day, the Department of Homeland Security (DHS) suspended “any and all actions implementing” President Trump’s executive order. The Ninth Circuit declined the Justice Department’s request to restore President Trump’s ban on immigration, and it is yet to be decided if this TRO will turn into a preliminary injunction, a more permanent court order that would last until the merits of the underlying dispute is resolved.
Is the executive order illegal or unconstitutional? Great minds differ on this point. Some argue the executive order violates the Immigration and Nationality Act. One provision of this Act states that the president may find “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,” and “suspend the entry” of those aliens. However, another section, added later, states 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.” Which section trumps? If the first is supreme, the executive order likely stands.
Even if the travel ban discriminates based on religion, it may not conflict with the Constitution. Many argue equal protection under the Constitution does not apply to immigration matters. Under this view, President Trump’s broad executive powers allow him to exclude all members of any race, nationality, or religion without offending the Constitution. It may be that the United States Supreme Court will soon decide this issue, and whatever they say trumps.
This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.