On March 6, 2017, the Trump Administration issued a new executive order with regard to immigration into the United States from seven majority-Muslim countries, which will go into effect on March 16, 2017. This order repealed and replaced Executive Order 13769, implemented on January 27, 2017. The purpose of this article is to discuss the new executive order, compare it to the original executive order, and discuss its constitutionality and practical implications.
Q: Is Executive Order 2.0 narrower than Executive Order 1.0?
Yes. The new executive order is narrower than the initial executive order in a number of ways. First, the new executive order no longer bans persons from Iraq, although their visas will be subjected to “additional scrutiny.” Persons from Iran, Syria, Sudan, Libya, Somalia, and Yemen are still barred for a period of 90 days, subject to certain limited exceptions and waivers. Second, the new executive order explicitly permits Lawful Permanent Residents, persons with valid visas as of the date of the original executive order, and persons with valid visas as of March 16, 2017, to enter the United States. Third, the new executive order does not grant any preferential treatment to religious minorities from the listed countries. Based on demographics, the preferential treatment for religious minorities had previously been interpreted as favoring Christians over Muslims.
Q: Does Executive Order 2.0 contain problematic provisions that were also a part of Executive Order 1.0?
Yes. The new executive order retains problematic provisions that suggest that it is an anti-Muslim ban. First, the only countries banned by this order are countries with majority-Muslim populations. Also, both orders state that the government will collect and make publicly available “information” regarding “foreign nationals” who are: (1) charged with terrorism-related offenses while in the United States; (2) have been radicalized and engaged in “terrorism-related” acts; or (3) have committed “gender based violence” including “so-called ‘honor killings.’” See Executive Order, Section 11(i)-(iii).
These provisions are of course, deeply concerning. Collecting data regarding the commission of a certain kind of crime by one group, but not other groups, appears to be an attempt to smear foreign nationals, particularly Muslim foreign nationals, with criminality. If the concern were with eradicating a specific crime, surely it would be logical to study all perpetrators of that crime, regardless of whether they were American citizens or foreign nationals.
Q: Does Executive Order 2.0 contain important provisions that were not included in Executive Order 1.0?
Yes. The new executive order, specifically section 3(c), permits the Commissioner of the U.S. Customs and Border Protection, or a person designated by the Commissioner, to grant admission to persons based on a number of different reasons, including that they previously had worked or studied in the United States, had “significant contacts” with the United States, that they had significant business or professional obligations, sought to visit or reside with a family member, is being adopted or has health issues, is an employee of the U.S. government, or various other exceptions. However, it is not mandatory that these persons be admitted to the United States, and many have opined that these waiver provisions do not prevent the executive order from being unlawful discrimination.
Q: Does Executive Order 2.0 address the concerns raised in the currently pending lawsuits against Executive Order 1.0?
Yes and no. The new executive order seems to make an effort to appear more neutral, by deleting provisions that benefitted religious minorities (namely Christians), giving a more detailed account of the alleged terrorist threats that supposedly led to it being promulgated (see Section 1), permitting lawful permanent residents to enter and leave the United States at will, and allowing certain provisions to be waived. However, at the end of the day, the “evidence” supporting the new ban is very thin.
A three-judge panel from the Ninth Circuit unanimously denied a stay of the nationwide Temporary Restraining Order against portions of Executive Order 13769, noting that, “The 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.” Ninth Circuit Order Denying Stay, pp. 26-27. The new executive order includes no evidence that such a terrorist attack has occurred.
Similarly, Judge Brinkema, of the United States District Court, Eastern District of Virginia, when granting a preliminary injunction against portions of Executive Order 13769, rejected the executive branch’s contention that the immigration ban was proper because the President was operating at the zenith of his power, holding:
Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001).
Both Judge Brinkema and the Ninth Circuit ruled that courts have the power to look beyond the executive’s stated purpose to the language that he and his surrogates used when they called this executive order what it is—a Muslim ban. This analysis is unlikely to change, even though the wording of the ban has changed. As the organization Muslim Advocates pointed out in their op-ed in the New York Times, the very fact that Muslim-majority countries are included in the ban, while predominantly Christian “Terrorist Safe Havens,” including Colombia, the Philippines, and Venezuela, are not, is evidence of unlawful intent.
Furthermore, recent leaks from the administration also contradict the executive branch’s stated rationale for the executive order. A draft report issued by the Department of Homeland Security, which was obtained by the Associated Press and published on February 24, 2017, concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” A second Department of Homeland Security intelligence assessment was obtained by Rachel Maddow, and concluded that most foreign-born persons who became violent extremists did so an average of 10 years or more after entering the United States.
Q: What steps can I take to respond to the new Executive Order?
There are a number of constructive steps that those who are concerned about the executive order can take in order to address it. First, you can call your congresspersons (two senators, and one representative.) The Indivisible Guide has helpful information regarding how to effectively lobby your representatives. Second, you can inform yourself on important immigration law issues, through organizations such as the Council on American-Islamic Relations (CAIR), Muslim Advocates, the ACLU, the American Immigration Lawyers Association, and the International Refugee Assistance Program (IRAP). Third, you can encourage your congresspersons to support the “Access to Counsel Act,” Senate Bill 349, and House Bill 1006, which would formally grant persons detained at a point of entry the right to counsel.
Maureen Pettibone Ryan practices general civil litigation in San Jose, California. She focuses on business litigation, employment and civil rights, representing sexual abuse victims, and education law. She attended the United States Air Force Academy and Santa Clara University for undergrad, and obtained her law degree from the University of Michigan Law School.
Maureen also acknowledges the contribution from immigration attorney Spojmie Nasiri to this piece. Spojmie is the president of the Executive Committee Board for Council on American Islamic Relations (CAIR) for the San Francisco Bay Area Chapter.
