Legal consequences of this controversial decision explained by Professor Mohamed Arafa, Visiting Professor at Cornell Law School. Is it a way back?
Abstract
The United States Supreme Court passed a victory to the current President Donald J. Trump by revitalizing parts of a travel ban on individuals from six Muslim-majority countries that he alleged is needed for national security and the interests of the United States but that adversaries criticize and claim as biased and discriminatory.
The justices lessened the scope of lower court decisions that had entirely blocked crucial parts of a March 6, 2017 executive order that Trump had said was required to avert terrorism attacks, permitting his temporary ban to go into effect for folks with no strong ties to the United States. In this domain, the court issued its order on the last day of its current term and agreed to hear oral arguments again at a later stage, so it can decide lastly whether the ban is legitimate in a foremost test of presidential powers and controls.
Introduction and overview
After his inauguration on January 20, 2017, President Donald J. Trump signed a controversial executive order on January 27, 2017 stumbling all refugee admissions and temporarily barring individuals from seven Muslim-majority countries.(1) The move glimmered several protests and legal challenges. After the issuance of that ban, a federal judge in Seattle suspended it nationally, permitting debarred visitors to travel to the US pending an appeal by the administration.(2) President Trump and his followers say the debatable executive order makes good on election promises to “Make America Great Again.”(3) But what is the order, labeled the “Muslim ban” by those standing against it, and who exactly does it affect? In a series of Twitter posts, Mr. Trump may have irreversibly destabilized his attorneys’ efforts to convince the Supreme Court to reinstate his executive order restraining travel from six mainly Muslim countries, according to the major legal scholars.(4) Saying he favored “the original Travel Ban, not the watered down, politically correct version” he had issued, Trump condemned both the Justice Department and the federal courts.(5)
Moreover, he contradicted his own advisers, who have recommended he was causing a pause in travel, by calling the order.
“what we need and what it is, a TRAVEL BAN!”, as he said it would be executed on “certain DANGEROUS countries” and proposed that anything short of a ban “won’t help us protect our people!”(6) Professor Josh Blackman, a law professor at South Texas College of Law in Houston said that:
'There is a reason lawyers generally insist that their clients remain quiet while their cases move forward. “Talkative clients pose distinct difficulties for attorneys, as statements outside the court can frustrate strategies inside the court,” “These difficulties are amplified exponentially when the client is the president of the United States, and he continuously sabotages his lawyers, who are struggling to defend his policies in an already hostile arena. I do not envy the solicitor general’s office.” Even a lawyer with strong ties to the administration said Mr. Trump was hurting his chances in the Supreme Court and undercutting the work of the Justice Department’s elite appellate unit [and] he wrote in his own Twitter post, referring to the Office of the Solicitor General and the Supreme Court of the United States. “Sad.”(7)
David B. Rivkin Jr., an attorney in Ronald Regan and George Bush’s administrations said that some administration supporters said the court should not consider the tweets. While looking beyond the letter of the order might be suitable in domestic policy, the president has an abler hand in foreign policy.(8) Taking the oath of the United States presidency marks a thoughtful transition from private life to the nation’s uppermost public office, and establishes the singular responsibility and independent authority to protect the welfare of the nation that the Constitution reposes in the president.(9) According to President Trump twitter’ posts, he appeared to say that the latest executive order was of a piece with the former one, issued in January, and with his venerable positions.(10) In calling the revised order “politically correct,”
Trump proposed that his purpose throughout had been to eliminate travelers based on religion and in calling the revised one “watered down,” he made it harder for his lawyers to maintain that it was a clean break from the previous one, which had mentioned religion.(11)
In his online posts, President Trump seemed to deceive a confusion of how two branches of the federal government work, as his harsh condemnation of the Justice Department was inappropriate, as he also recommended that the Justice Department could ask the Supreme Court to enforce a “much tougher version” of his executive order.(12)
Furthermore, insulting judges is also normally a poor litigation policy but he also posted that “the courts are slow and political!”(13) Trump’s own staff members had insisted it was not a travel ban, for instance the White House press secretary, spent much time of one early briefing explaining reporters not to call it that: “It’s not a travel ban,” “When we use words like travel ban, that misrepresents what it is.” Meanwhile, the secretary of homeland security, John F. Kelly, also denied the phrase and recited “This is not a travel ban, this is a temporary pause that allows us to better review the existing refugee and visa vetting system.”(14) Against this succinct backdrop, this article will examine in Part II, the difference between President Trump’s executive order(s) and President Obama’s executive order and his 2011 policy and its III section, it illustrates the legality of the ban from the legal and constitutional perspectives and will conclude in its final part by the expectations of what is the approach of the United States Supreme Court?
Donald Trump's Inmigration Ban and Barack Obama's 2011 Policy: Any Major Differences?
President Donald Trump defended his executive order momentarily banning citizens from seven majority-Muslim countries by raising a policy set by former President Barack Obama in 2011.(15) He said, “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months,” the statement said. “The seven countries named in the Executive Order are the same countries previously identified by the Obama’s administration as sources of terror.” On the other hand, advocates, legal experts, and former Obama administration officers have since criticized the comparison, arguing that the 2011 immigration boundaries, during which Obama’s administration slowed its processing of Iraqi refugee applications, was essentially different in intent and logistics.(16) In this regard, Trump’s prohibition was much wider than the previous administrations and did not respond to a specific threat.(17) It should be noted that the Obama administration established the policy subsequent to the finding that two men assumed or suspected of making bombs to target American troops in Iraq were living in Kentucky as refugees.(18) And here are some differences between the two strategies raised by legal scholars.
Within the scope of the ban, Obama did not “ban visas for refugees from Iraq for six months,” as Trump said – refugees don’t travel on visas, but the Obama’s administration intensely slowed the processing of refugee requests and “Special Immigrant Visas (SIV)” program launched, meant for Iraqi interpreters who helped US forces, while it extended its screening procedures.(19) Moreover, the Obama government reexamined 58,000 Iraqi refugees who had already been admitted to the US, according to a 2012 congressional hearing.(20) In addition, Eric Schwartz, the former assistant secretary of state for population, refugees, and migration, also disputed Trump’s comparison between the two policies, as he mentioned “For several months in 2011, there was a lower level of Iraqi resettlement, as the government implemented certain security enhancements […] there was never a point during that period in which Iraqi resettlement was stopped, or banned, ...”(21) So, the 2011 policy intended a narrow group of folks: refugees and Special Immigrant Visa applicants from Iraq, but in contrast, Trump’s ban targeted a wide net, excluding millions of individuals across seven countries from approximately every sort of accessible visa.(22) In other words, it applies to seven countries with total population more than 130 million and to almost every category of immigrant other than diplomats, including tourists and business travelers.(23)
Within the intent, the perspective underlying the two presidents’ strategies is also a dramatic difference. The reasoning behind Trump’s order was roughly described as to “protect the United States from foreign nationals entering from countries compromised by terrorism” and to impose “a more rigorous vetting process.”(24) Thus, Trump’s order seems proactive, anticipating a probable attack, while Obama’s 2011 policy was reactive, responding to a precise threat: the two Iraqi refugees who had managed to resettle in Kentucky.(25) It should be noted that the Obama’s strategy inclined to prioritize individuals who had been convicted of explicit and specific criminal offenses or about whom the US government had specific knowledge (intent) that proposed the person was a threat or about to commit an imminent harm and was not based on nationality.(26) Trump is correct, though, that the seven countries mentioned in his order had been previously identified by the Obama administration, but those countries – according to the Department of Homeland Security – were named in a 2015 law that revised the US visa-waiver program to “respond to the growing threat from foreign terrorist fighters.”(27) In other words, while there were delays in processing, there was no absolute ban. Thus far, the Trump government has provided no evidence, nor even declared, that any specific information or intelligence led to its draconian and bigotry or discriminating policy.
Therefore, there are several reasons to detest the Donald Trump administration’s executive order on “Protecting the Nation from Foreign Terrorist Entry to the United States” that it’s hard to know where to start. Scholars have already argued expressively about its brutality in singling out the most susceptible in society; its strategic folly in offending countries and individuals the United States needs to asset it fight terrorism (the apparent goal of the order in the first place); its cynical incoherence in using the September 11 attacks on the World Trade Center, as a justification and then exempting the attackers’ countries of origin; its ham-handed execution and ever-shifting explanations for how, and to whom, it applies; and, thankfully, its legal weakness on a slew of soon-to-be-litigated grounds, as well as that it may breach the establishment and equal protection clauses of the U.S. Constitution.(28) This is not just bad policymaking practice; it led directly to the confusion, adjoining on chaos, that has attended application of the order by agencies that could only start asking questions (such as: “Does this apply to green card holders?”) once the train had left the station.(29)
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