Executive Order Number 13769: “Protecting the Nation from Foreign Terrorist Entry into the United States”

The Executive Order

On January 27, 2017 President Donald Trump signed Executive Order Number 13769, also known as “Protecting the Nation from Foreign Terrorist Entry into the United States,” which “suspend[s] entry” of nationals from seven countries (Iran, Iraq, Syria, Somalia, Sudan, Libya, and Yemen) into the United States for 90 days.[1] The admission of refugees of any nationality into the country is also suspended for 120 days, except for Syrian refugees, whose admittance is suspended indefinitely. Per the President’s order, the admittance of Syrian refugees “is detrimental to the interests of the United States.”[2] The order further proclaims that

the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.[3]

While the order does not specifically ban adherents of any particular religion, citizens of the seven countries included in the order are primarily Muslim.[4] Once refugee admissions are allowed to resume, the order instructs the Department of Homeland Security to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality,” all but ensuring that Muslim refugees from Muslim majority countries will not receive prioritization.[5]

Despite the order’s references to the terrorist attacks on September 11, 2001, the travel ban will not affect Saudi Arabia, Egypt, the United Arab Emirates, or Lebanon—the four countries that were home to the terrorists who carried out the September 11 attack.[6]

The full text of the executive order can be accessed here:

https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states.

Legal Concerns

President Trump’s order went into effect without much warning and with no grace period, resulting in travelers from the seven countries affected by the ban being detained at American airports, removed from flights, or prohibited from boarding flights to the United States.[7] There have been several legal challenges raised to this executive order, including charges of discrimination and violations of due process.

Fifth Amendment- Due Process

The Fifth Amendment to the Constitution states that no one can be “deprived of life, liberty, or property without due process of law.”[8] One of the major concerns with President Trump’s executive order is the violation of the right of due process, particularly with regards to those travelers who have been detained at airports and who are being deported. A case filed in New York by the American Civil Liberties Union (“ACLU”) argued that the order violated the due process rights of those affected and requested a temporary injunction blocking the deportation of travelers from the seven banned countries. The court agreed and granted the injunction, ordering that the Respondents, which include President Trump and the Department of Homeland Security, be “restrained from the commission of further acts and misconduct in violation of the Constitution…”[9]

First Amendment- Religious Freedom

Other concerns that have been raised about President Trump’s executive order cite to the discriminatory undertones of the text. While there are no mentions of the terms “Muslim” or “Islam” in the text of the executive order, the practical effects of the order disproportionately impact Muslims, leading many to allege that the order is a form of religious discrimination.[10] In a lawsuit filed against President Trump in Virginia, the Plaintiffs argue that by “signing a Muslim Exclusion Order whose purpose and effect is to discriminate on the basis of religion,” President Trump has deprived them of “their right to be free from religious discrimination in violation of the Establishment Clause to the First Amendment to the United States Constitution.” The Plaintiffs further allege that the order “imposes upon Islam…the stigma of government disfavor.”[11]

The Immigration and Nationality Act

President Trump’s executive order derives some of its authority from the Immigration and Nationality Act (“INA”), 8 U.S.C. 1101 et seq, which provides the President with some decision-making power in terms of who can or cannot immigrate to the United States, but which also contains an anti-discrimination clause. The INA 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.”[12] However, refugees and nonimmigrants are not subject to the protection of this clause.

[1] Exec. Order No. 13,769, 82 Fed. Reg. 8977, 8978.

[2] Id. at 8979.

[3] Id. at 8977.

[4] http://www.bbc.com/news/world-us-canada-38799796.

[5] Exec. Order No. 13,769 at 8979.

[6] http://www.cnn.com/2017/01/29/politics/how-the-trump-administration-chose-the-7-countries/index.html.

[7] http://www.bbc.com/news/world-38788664.

[8] U.S. Const. amend. V.

[9] Darweesh v. Trump , No. 17 Civ. 480, 2017 U.S. Dist. LEXIS 13243 at *2 (E.D.N.Y. Jan. 28, 2017).

[10] http://www.cnn.com/2017/01/29/politics/trump-travel-ban-legal/

[11] Complaint for Injunctive and Declaratory Relief at 21, Sarsour v. Trump , No. 1:17-cv-00120 (E.D.Va. Jan. 30, 2017).

[12] 8 USCS § 1152(a)(1)(A).