Constitutional Issues Surrounding President Trump's Travel Ban

CONSTITUTIONAL ISSUES ASSOCIATED WITH PRESIDENT TRUMP S TRAVEL BAN A Presentation for World Without Genocide By Prof. Anthony S. Winer Mitchell Hamline School of Law August 30, 2017

Executive Order No. 13769 (January 27, 2017). Had these effects, among others: - Barred entry of aliens from 7 countries for 90 days (Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen). - Reduced number of refugees to be admitted in 2017 from 110,000 to 50,000. - Barred indefinitely the entry of Syrian refugees. - Ordered 120-day suspension of U.S. Refugee Admissions Program. - Ordered Secretary of State to prioritize refugee claims by individuals on the basis of religion-based persecution when that was a minority religion in their home country.

Executive Order No. 13780 (March 6, 2017). Was very similar to the first order, except for certain nominal modifications: - There were 6 countries, not 7; Iraq was removed. - The 90-day exclusion didn t apply to resident legal aliens - The 90-day ban didn t apply to anyone who had validly obtained a visa prior to the effective date of the first order; those persons would not be barred entry. - The second order does not include the indefinite ban on Syrian refugees - The second order does not contain the distinction favoring Christian refugees

Statements during campaign and shortly after election December 7, 2015: Candidate Trump s Statement on Preventing Muslim Immigration called for a total and complete shutdown of Muslims entering the U.S. until our representatives can figure out what is going on. March 9, 2016: In an interview, Candidate Trump said: Islam hates us, and We can t allow people coming into this country who have this hatred. July 17, 2016: In response to a tweet criticizing immigration bans for Muslims, Candidate Trump said: So you call it territories. OK? We re gonna do territories. July 24, 2016: In response to a question about whether he was rolling back his Muslim ban, Candidate Trump said: People are so upset when I use the word Muslim, [so I am] talking territory instead of Muslim.

Statements, continued December 21, 2016: Upon being asked whether recent attacks in Europe affected his proposed Muslim ban, President-elect Trump said: You know my plans. All along, I ve proven to be right. 100% correct. January 27, 2017: As President Trump was signing the first order, he read out the title ( Protection of the Nation from Foreign Terrorist Entry into the United States ), and then said: We all know what that means. January 28, 2017: Former NYC Mayor Rudy Giuliani said that President Trump said that when [Trump] first announced it, he said Muslim ban. He called me up. He said, Put a commission together. Show me the right way to do it legally.

POSSIBLE CONSTITUTIONAL ISSUE ONE: Standing As a result of the government action complained of, the plaintiff must have: - suffered an invasion of a legally protected interest - that is concrete and particularized - and actual or imminent, - not conjectural or hypothetical. - Spokeo v. Robins, 136 S. Ct. 1540, 1548 (2016).

POSSIBLE CONSTITUTIONAL ISSUE TWO: Establishment Clause To avoid invalidation of a government act under the Establishment Clause, the government must show: - That the challenged action has a secular legislative purpose; - That its principal or primary effect is one that neither advances nor inhibits religion; and - That it does not foster an excessive government Entanglement with religion. - Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)

POSSIBLE CONSTITUTIONAL ISSUE THREE: Establishment Clause Under the Endorsement Test, any endorsement of religion is Invalid, because it sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. - Allegheny County v. ACLU, 492 U.S. 573 (1989).

POSSIBLE CONSTITUTIONAL ISSUE FOUR: Separation of Powers INA President finds 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, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. [emphasis added] 212(f), 8 U.S.C. 1182(f): Whenever the

Exec. Order No. 13780, that the unrestricted entry into the U.S. of nationals of the six states would be detrimental to the interests of the United States, asserting that the restrictions are necessary: - To temporarily reduce investigative burdens on relevant agencies during the review period [prescribed by the Executive Order]; - To ensure the proper review and maximum utilization available resources for the screening and vetting of foreign nationals; - To ensure that adequate standards are established to prevent infiltration by foreign terrorists; and - In light of the national security concerns referenced in the Executive Order. 2(c): The President proclaims