Trump’s Travel Ban: Is There a Way Out?

By Rita Samaan
Associate Editor, Vol. 22

In the wake of the Ninth Circuit Court of Appeals’ decision to block President Trump’s Executive Order 13769 (“Executive Order”), the President vowed to issue “a new executive action . . . that will comprehensively protect our country.”[1] The President’s officials have disclosed their intent to advocate more strongly for why the revised ban should apply to the seven listed countries.[2] They hope to overcome the amassing legal scrutiny of the travel ban and make it less of a “Muslim ban” in effect.[3]

So, who stood in the way of Trump’s order? Washington and Minnesota brought an action against President Trump, the Secretary of Homeland Security, Secretary of State, and the United States for a declaratory judgment that portions of the Executive Order were unconstitutional.[4] The states filed a motion for a temporary restraining order (TRO).[5] The United States District Court for the Western District of Washington granted the TRO and denied motion for stay pending appeal.[6] The federal government moved for an emergency stay of the district court’s TRO while waiting for its appeal to proceed.[7]

The decision on the government’s motion for an emergency stay came before the Ninth Circuit Court of Appeals. The court faced two questions: 1) whether the Government had made a strong showing of its likely success in its appeal and 2) whether the district court’s TRO should be stayed in light of the relative hardship and the public interest.[8] The court answered “no” to both questions,[9] listing several reasons for its decision.

The court held the Government had not shown it is likely to succeed on appeal on its argument regarding the States’ Due Process Clause claim.[10] The Government cannot deprive a person of these protected interests “without providing ‘notice and an opportunity to respond,’ or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered.”[11]

Moreover, the court reasoned that the procedural protections of the Fifth Amendment’s Due Process Clause apply to all “persons” within the United States, which includes aliens—notwithstanding “whether their presence here is lawful, unlawful, temporary, or permanent.”[12] The Government did not succeed in showing that the States lacked viable due process rights claims for people whose protected interests will suffer due to the Executive Order.[13]

In regard to question two, the court found that the Government had not shown a stay was necessary to avoid irreparable injury.[14] The Government also provided no evidence to rebut the States’ argument that the lower court’s TRO simply returned the nation to its previous position – it did not worsen the country’s situation.[15] The Government also claimed it suffered an institutional injury when the courts interfered with an executive order, thereby eroding the separation of powers.[16] The court found that this injury is not “irreparable” because the Government can vindicate its interests through this litigation.[17]

On the other hand, the States have provided evidence that if the Executive Order were reinstated, it would considerably injure the States.[18] The travel ban substantially harmed many States’ families, students, and employees.[19] The court engaged in a weighing test of which interests should take precedence.[20] On the one hand, it acknowledged that the public does have a strong interest in national security and a president’s ability to enact policies.[21] On the other hand, the court also found that the public has an interest in free flow of travel, keeping families together, and freedom from discrimination.[22] The court found the latter interests to be more important; thus, the travel ban was not justified to protect national security and the emergency motion for a stay pending appeal was denied.[23]

While the appeal was still pending, President Trump signed a revised Executive Order on March 6, 2017, which has been similarly blocked by federal judges in Hawaii and Maryland.[24]  The revised order imposes a 90-day ban on the issuance of new visas for citizens of now six countries because Iraq has been removed from the ban.[25] The U.S. refugee program will also be suspended for 120 days and will now accept no more than 50,000 refugees in a year, which is significantly less than the previous 110,000 limit set by the Obama administration.[26]

There is a lot of room for this Executive Order to be changed, or even struck down. If the Executive Order were to be struck down, it would return the U.S. to its former immigration process. However, a part of the order may be salvageable. Although the main purpose of the Executive Order is to provide for national security, there is a small portion of it that speaks to protecting refugees who are religiously persecuted. The U.S. government has an international responsibility to care for refugees and victims of genocide, and that is what the religious persecution portion should be used to do.

Section 5(b) of the ban “directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality.”[27] This section should be severed from the order, reframed, and recategorized under efforts to help victims of ISIS’s religious genocide. For example, it could be reframed to direct that protection be afforded to these victims, as well as direct resources to be allocated for genocide relief programs.

March 17, 2017 marked the one-year anniversary since the House of Representatives voted 393-0 to recognize ISIS’s crimes as a genocide against religious minorities who don’t conform to its vision of “true Islam,” which includes Yazidis, Christians, Shabaks, Sabea-Mandeans, Turkomen, and Shia Muslims.[28]

A reframed Section 5(b) may provide the impetus for the coordination of both American and international efforts to provide sanctuary to those religious minorities. The need for global aid is urgent. The Christian and Yazidi ancient presence in the ISIS controlled region is now on the verge of extinction.[29] Aid to the Church in Need, a UK-based Catholic campaign, warned that Christians could disappear from Iraq within five years “unless emergency help is provided at an international level on a massively increased scale.”[30] In Iraq, the number of Christians has fallen to 275,000 while Syria’s Christian population has dropped from 1.25 million in 2011 to about 500,000 today.[31] The Archbishop of Washington, Cardinal Donald Wuerl, said, “For some time, the world has witnessed the deliberate and organized effort by ISIS to eliminate Christians from the Middle East. For the U.S. government to call this savagery by its proper name—genocide—is a welcome step in what must now be a more committed effort at bringing peace and security to that beleaguered land . . . These words must now be translated into action.”[32] And yet, three years after ISIS began its onslaught in Iraq, the genocide against religious minorities rages on as the world stands by.

Therefore, the Executive Order should be struck down for the unconstitutional reasons the court discussed, returning the U.S. to its former immigration process (though it may have its imperfections), and the number of accepted refugees should be increased. Next, Section 5(b), instead of being part of a broad unconstitutional travel ban, should be severed and reframed to help genocide victims. In this way, the U.S. could protect the rights of people within its borders and also act on its international responsibility to help refugees and victims of genocide.

[1]Spencer Ackerman, Trump’s Updated Travel Ban to Have Minimal Input From National Security (Feb. 25, 2017), The Guardian, https://www.theguardian.com/us-news/2017/feb/17/trump-updated-travel-ban-minimal-input-national-security.

[2] Id

[3] Id.

[4] Washington v. Trump, 847 F.3d 1151, 1151 (9th Cir. 2017) (per curiam).

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 1164.

[9] Id.

[10] Id.

[11] Id. (quoting United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014)).

[12] Id. at 1165 (quoting Zadvydas v. Davis, 533 U.S. 678 (2001)).

[13] Id.

[14] Id. at 1168.

[15] Id.

[16] Id.

[17] Id.

[18] Id. at 1168-69.

[19] Id.

[20] Id. at 1169.

[21] Id.

[22] Id.

[23] Id.

[24] Oliver Laughland, Trump Administration Appeals Partial Block of Travel Ban by Maryland Judge (Feb. 17, 2017), The Guardian, https://www.theguardian.com/us-news/2017/mar/17/trump-appeal-revised-travel-ban-maryland-judge-theodore-chuang.

[25] Matthew Zapotosky, Revised Executive Order Bans Travelers From Six Muslim-Majority Countries From Getting New Visas (Mar. 6, 2017), The Washington Post, https://www.washingtonpost.com/world/national-security/new-executive-order-bans-travelers-from-six-muslim-majority-countries-applying-for-visas/2017/03/06/3012a42a-0277-11e7-ad5b-d22680e18d10_story.html?postshare=3941488818443063&tid=ss_fb&utm_term=.21c519f3a208.

[26] Id.

[27] Washington, 847 F.3d at 1151.

[28] Bradford Richardson, Advocates Encourage Trump to Take Action on Anniversary of Christian Genocide Designation (Mar. 16, 2017), The Washington Times,  http://www.washingtontimes.com/news/2017/mar/16/christian-genocide-in-middle-east-anniversary-has-/.

[29]Lizzie Dearden, Christianity ‘On Course to Disappear’ in Parts of Middle East as Ethnic Cleansing Continues, Report Warns (Nov. 10, 2015), The Independent, http://www.independent.co.uk/news/world/middle-east/christianity-on-course-to-disappear-in-parts-of-middle-east-as-ethnic-cleansing-continues-report-a6728831.html.

[30] Id.

[31] Id.

[32] Elise Labott and Tal Kopan, John Kerry: ISIS Responsible for Genocide (Mar. 18, 2016), CNN, http://www.cnn.com/2016/03/17/politics/us-iraq-syria-genocide/.