STEPHANIE MACLAUGHLIN – On January 27, 2017 President Donald Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”. The order imposed a 90-day suspension on entry into the United States for “all travelers, except U.S. citizens, traveling from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yamen.[1] The White House defended the Executive Order by stating that the Order is intended to protect the citizens of the United States and that the President has “the constitutional authority and responsibility to protect the American people”.[2]
On January 30, 2017, the State of Washington filed a complaint against Donald J. Trump, John F. Kelly (Secretary of Homeland Security), Tom Shannon (Secretary of State), and the United States of America.[3] Two days later, the State of Washington amended their complaint and added Minnesota as a plaintiff.[4] The states sought declaratory and injunctive relief against the defendants to preserve the status quo until a hearing on their application for a preliminary injunction.[5] On February 3, 2017, the U.S. District Court granted the temporary injunction opining that the states met their burden.[6] The court stated: “The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.[7]
These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities.”[8]
Consequent to the issuance of the nationwide restraining order, the White House stated that the federal government would challenge the decision.[9] The federal government attempted to appeal the decision in the Ninth Circuit moving to “stay the injunctive order pending resolution of the appeal.”[10] The Ninth Circuit denied their motion on February 9, 2017.[11] The Justice Department remained silent as to whether they would appeal the ruling with the Supreme Court.[12] Absent a successful appeal in the Court of Appeals or the Supreme Court, the February 3, 2017 temporary restraining order, remains in effect.[13]
On February 16, 2017, President Donald Trump indicated that the federal government would rework the Executive Order and tailor it to the federal court decision.[14] The Justice department has stated that they will restructure the order to eliminate the constitutional claims that were raised by the ninth circuit.[15]
Throughout United States history presidents have used executive orders to ban certain foreign groups from entering the country; in fact six of the last seven presidents passed travel bans relying on the same federal law as President Donald Trump.[16] The previous orders did not spark as much national controversy or court challenges.[17] The difference between Trump’s order and the immigration orders passed by prior presidents stems from the various constitutional implications.[18] Trump’s order raises issues of religious discrimination as it “calls for special consideration for followers of minority from the affected countries, a certain reference to Christians.[19] Moreover, Trump’s order fails to cite any specific immediate national threats. President Trump remains resilient in his efforts to enforce the travel ban and is working to rework its structure so it will hold up in court.
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[1] Homeland Security, Fact Sheet: Protecting the Nation from Foreign Terrorist Entry to the United States, https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-entry-united-states.
[2] Eversley, Melanie, Federal Judge Blocks Trump’s Travel Ban; DOJ to Challenge Decision, USA Today, http://www.usatoday.com/story/news/2017/02/03/report-federal-judge-refuses-block-trump-immigration-ban/97466178/.
[3] Washington v. Trump, 2:17-cv-00141 (W.D. Wash. Feb. 3, 2017).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Homeland Security, Fact Sheet: Protecting the Nation from Foreign Terrorist Entry to the United States, https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-entry-united-states.
[10] Id.
[11] Id.
[12] Liptak, Adam, What’s Next for Trump’s Travel Ban? Justice Dept. and States Weigh Options, New York Times, https://www.nytimes.com/2017/02/13/us/politics/trump-travel-ban-courts.html?_r=0.
[13] Id.
[14] Jarrett, Laura, Malloy Allie, and Merica, Dan, Trump Promises New Immigration Order as DOJ Tells Court to Hold off, CNN, http://www.cnn.com/2017/02/16/politics/donald-trump-travel-ban-executive-order/.
[15] Id.
[16] Kumar, Anita, Trump is not the First President to Ban Foreigners. So why is this time Different?, White House, http://www.mcclatchydc.com/news/politics-government/white-house/article131121184.html.
[17] Id.
[18] Id.
[19] Id.
