Experts question legality of Trump's immigration ban on Muslim countries

Alan Gomez | USA TODAY

Show Caption Hide Caption Trump says refugee crackdown 'not a Muslim ban' Shortly after signing documents in the Oval Office, President Donald Trump said his crackdown on refugees and citizens from seven majority-Muslim countries "is not a Muslim ban." (Jan. 28)

The future of President Trump's executive order suspending immigration from seven predominantly Muslim countries may come down to a legal battle between his powers as commander in chief and discrimination limitations established by Congress.

A federal judge in New York issued a temporary, nationwide stay on the order late Saturday night. Lawyers, pushed along by a growing group of protesters, spent the day trying to free immigrants who were traveling when Trump's order was released, leaving them either detained at U.S. airports or stranded overseas.

But the legality of Trump's order won't be completely clear until it faces more hearings in federal court as Trump's Department of Justice squares off with a team of lawyers from civil rights and immigration advocacy groups.

Supporters of Trump's plan say he is standing on firm legal ground to ban immigrants and refugees temporarily from those countries because they pose a national security threat. Trump's order opens by citing the terrorist attacks on Sept. 11, 2001, and explains that the immigration suspension is necessary to give the federal government time to strengthen its vetting procedures for people coming from terror-prone countries.

"Throughout the history of this country, courts have given, for obvious reasons, the executive extraordinary latitude in making determinations associated with national security," said Dan Stein, president of the Federation for American Immigration Reform, a group that advocates for lower levels of legal and illegal immigration. "And this is a national security judgement, something that courts would never want to interfere with."

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Critics of Trump's plan say his national security argument is undercut by his repeated calls on the campaign trail for a "Muslim ban" and his comments Friday that he wants to prioritize the immigration of persecuted Christians over Muslims. Trump's ban also applies to everyone from Syria.

David Leopold, a Cleveland immigration attorney and past president of the American Immigration Lawyers Association, said a president clearly has a right to bar certain immigrants or groups of immigrants from entering the U.S. Trump's order cited a long-standing federal law that allows a president to bar entry to any immigrants or group of immigrants who the president deems "detrimental to the interests of the United States."

"But what the Trump administration failed to do," Leopold said, "is understand that nothing in our law justifies banning an entire religion, banning an entire nationality. He's going to have to answer how he can say that all of Syria is detrimental."

Leopold's argument rests largely on the Immigration and Nationality Act of 1965, which forbids discrimination against immigrants based on their "nationality, place of birth, or place of residence." The U.S. had previously used an immigration system that set a limit on the number of people who could enter the U.S. from each country, a system that heavily favored immigration from western Europe.

But that law has been set aside by presidents during national emergencies, according to Michael Hethmon, senior counsel at the Immigration Reform Law Institute, which provides legal support to legislators and politicians who want to reduce immigration.

Hethmon uses the example of President Carter, who in 1980 barred some Iranians from entering the U.S. during a crisis over 52 Americans being held hostage in Tehran. He said that case mirrors what Trump is facing now — the United States facing a large number of people in specific countries who are trying to harm the U.S.

"The court will say, 'There's a rational basis for picking these seven countries,'" Hethmon said. "They're all in the midst of civil conflict, they're all places where terrorist networks that are particularly dangerous to the U.S. exists. There are multiple reasons why refugees from these countries merit additional, or even extensive, scrutiny."

The seven are Iran, Sudan and Syria — which comprise the State Department’s list of state sponsors of terrorism — plus Iraq, Libya, Somalia and Yemen.

The key for a court to understand the true intent behind Trump's order — whether it's a religious ban or a national security concern — could lie in one paragraph of his executive order. It declares that once the refugee program is reinstated, the Department of Homeland Security must prioritize refugee claims made by persecuted religious minorities.

"Whoever drafted the order, I think they thought they were being incredibly clever immunizing this from legal scrutiny," said Jens David Ohlin, an international law professor at Cornell Law School. "But they might have shot themselves in the foot with that one."

Ohlin said that one section, which he said was the only piece of the order that did not pin itself to the national security argument, may open the entire order to questions about favoring one religion over another. It also follows comments Trump made to the Christian Broadcast Service on Friday, when he said Christians had been treated unfairly under the U.S. refugee program and they needed to be prioritized in the future.

"Courts are going to be giving really serious scrutiny to that one," Ohlin said.

As legal questions continue to swirl over Trump's order, only one certainty exists. "This is the start of a wave of litigation," said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project.