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Trump’s Immigration Ban: Domestic and International Rights at Threat

Banning a whole class of individuals based on their nationality is not only hateful, but legal professionals around the globe agree Trump’s immigration ban has a number of constitutional and international human rights issues to overcome.  The immigration ban not only restricts access into the United States for those from select black-listed countries, but it temporarily stops entrance for refugees seeking political asylum and permanently stops entrance for Syrian refugees.

Trump Immigration Ban

First Amendment

The Establishment Clause of the 1st Amendment guarantees religious equality and restricts the government from establishing (or supporting) any one particular religion.  While Trump’s team insists the immigration ban is not a blanket ban targeting Muslims, it’s hard to refute that argument based on Trump’s previous campaign statements.

On its face, the text of the order doesn’t exclude Muslims, but the text of the ban does state priority is to be given to refugees of a minority religion.  Since the ban affects 7 Muslim-majority nations, this language strongly indicates a preference for non-Muslim religions.  I can’t stress enough how much this practice would be in direct contradiction to the establishment clause.

Fifth & Fourteenth Amendment

Trump’s executive order singles out individuals based on both their nationality and religion and encourages discriminatory visa processing procedures, all of which raise discrimination issues that violate due process rights.

Due Process rights under the 5th and 14th Amendment require fair treatment, both procedurally and substantively.  Both the way the law pans out and the way the law is written matter.  Not only must the government provide fair and sufficient notice before denying someone their life, liberty, and property, the government cannot enact laws it doesn’t have the authority to enact.  While executive orders have been traditionally accepted, presidents don’t have the authority to enact laws that are discriminatory and contrary to the principles of the Constitution and laws of our nation.

Trump’s blanket ban provides no processes or procedures for denying entrance into the U.S., which left many stranded, including legal visa holders.  There’s a strong argument those travelers were denied their procedural due process rights.  They were given no notice or chance to make alternative travel plans.  Attorneys scrambled to file writs of habeas corpus demanding that, as asylum seekers on U.S. soil, the government was required under the Immigration and Nationality Act to at least grant asylum hearings, something the order didn’t allow for.

U.N. Experts Say Ban Violates International Human Rights Obligations

In the midst of lawsuit upon lawsuit demanding a halt on the immigration ban for constitutional violations, a group of U.N. human rights experts have weighed in and say the United States is now in violation of its international human rights obligations.  Under non-refoulement principles, the U.N. has long held that nations cannot expel or return a refugee to an area where their life or freedom are threatened.

Will the Ban Hold Up in Court?

After multiple lawsuits were filed, judges across the country issued injunctions blocking certain aspects of the executive order.  The state of Washington filed suit on the order as a whole and U.S. District Judge James Robart blocked the order in its entirety.  Although Trump appealed the decision, normal screening procedures commenced and will remain in effect until a decision is handed down.

Despite Trump’s offensive tweets that questioned Judge Robart’s opinion, Trump seems to be a minority on this one.  Sixteen other state attorney generals have joined the lawsuit.  Massachusetts, New York, Pennsylvania, California, Connecticut, Delaware, Illinois, Iowa, Maryland, Maine, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia have filed a brief as “friends of the court” to argue against the ban.  At least 127 tech companies have also filed briefs in opposition to the ban.

Trump cited a need to protect our nation from terrorist threats as the basis for the executive order, but it’s arguable the ban will do nothing to actually prevent future attacks.  Media attention has focused on the fact that none of the most recent attacks in the U.S. have originated from the countries on Trump’s list.  Certainly, national security interests can undoubtedly outweigh constitutional protections, but that should only be on a case-by-case basis and not a blanket ban based on nationality.  While courts traditionally have given the executive branch great leeway when it comes to immigration policy, it’s not likely this particular order will pass constitutional muster.

Why the “Muslim Ban” is Still On Hold

In a presidency already jam-packed with sweeping changes and controversial actions, no move has been so contentious as President Trump’s executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States;” better known colloquially as the “Muslim Ban.”  The executive order placed a 90-day bar against immigration from seven Muslim-majority countries, a 120-day bar on all refugees, and a permanent bar against refugees coming out of Syria.  The response to the order has been vocal to say the least.  However, the response has not just been protests and outcry–the order has also faced a number of legal challenges.  Just recently, a Washington court placed an emergency injunction on the “Muslim Ban”–a court order temporarily preventing Trump’s executive order from taking effect.

This isn’t the only, or even the first, court place an injunction on the “Muslim Ban.”  Courts in California, New York, and Massachusetts have all issued orders blocking parts of the ban. However, the Washington ruling was the first to stop the entire order in its tracks.

The Washington ruling was quickly appealed to the 9th Circuit Court of Appeals by the Department of Justice with the goal of overturning the injunction.  However, just yesterday, the 9th Circuit came back with a unanimous decision to keep the stay in place.

The Lead Up to the Ruling

In the oral arguments leading up to the decision, the court seemed split but appeared to lean in favor of upholding the ban.  Two of the judges on the three judge panel ruling on the case targeted the attorney for the Department of Justice (DoJ) with sharp questions about what evidence they had to support the need of the ban in the despite its potential for unconstitutional discrimination.  They also questioned the DoJ’s position that they did not have the power to review Trump’s executive order.  The third judge however, an appointee of former President George W. Bush, targeted the lawyer for Washington with equally sharp questions about whether the ban was discriminatory in the first place.

Muslim Ban TrumpA great deal could be read into these questions, and many felt confident that Washington’s injunction would be upheld 2-1.  However, it’s important to remember that questions can be just that–a judge’s job is to challenge both sides of the argument where they see inconsistencies in a pursuit of the truth.  Ultimately, the judges–appointed by a mix of Republican and Democrat presidents, came out with a unanimous 3-0 ruling against the “Muslim Ban.”

Why Did They Rule Against the Order?

Where a law, or executive order as the case may be, discriminates against a protected class (such as race, national origin, or religion) it is held to the highest levels of scrutiny and must be absolutely necessary to a crucial national concern with no other less harsh alternatives before it can be constitutional and thus valid.  My colleague has previously published an excellent article on the constitutionality–or lack thereof–of a immigration ban targeting Muslim majority countries.  While her article focuses on discrimination based on national origin, a very valid concern when we’re talking about an order which singles out people originating from specified nation for worse treatment, Washington’s injunction instead hinges on the argument that the ban singles out Muslims for discrimination.

However, the 9th Circuit’s decision does not go so far as to say that the “Muslim Ban” is or is not discriminatory.  Frankly, it doesn’t need to go that far in order to determine whether to uphold an injunction.  Instead, they need to make a decision based on whether the injunction itself should stand.  This requires them to find that the federal government has provided evidence which establishes that the country would suffer irreparable harm if the “Muslim Ban” were not immediately reinstated.

However, the federal government barely bothered to try to produce evidence on this issue.  Instead, they stuck with an argument that the courts had no power to review President Trump’s executive order when it was made on the subject of immigration.  While immigration is a subject where the President’s executive orders have the most sway, the idea that an executive order would beat out the Constitution is patently ridiculous and without support.  The 9th Circuit said as much in their opinion, stating “The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections…There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case.”  Basically, they told the government that–while executive orders receive deference when it comes to immigration and national security–to say that they are immune to the highest law of the land in the Constitution is a very silly argument indeed.

Thus, with the DoJ focusing on arguing that the Court didn’t have the power to intervene on an unconstitutional executive order, they didn’t really bother to produce any evidence of the danger of keeping the injunction in place.  They produced no evidence of terrorist attacks from refugees out of the named countries, really no evidence at all of dangers presented by keeping the injunction in place.  Thus, they lost 3-0.

What the Ruling Means

To put it most simple terms, upholding this injunction means that the entirety of President Trump’s executive order will simply not take effect until the case is fully resolved–immigration from the countries listed and refugees from around the world can continue to seek opportunity in the United States of America.  At a more abstract level, a unanimous ruling from three judges with differing political ideologies sends a message to the world about how strongly the United States values the Constitutional rights it guarantees.

The case is not completely finished, it can and almost certainly will be appealed directly to the Supreme Court of the United States.  However, with large chunks of the executive order designed to end 90 and 120 days after the order was signed it seems likely that these elements will run their course before a decision could come out of the Supreme Court on the issue.  This might require the Trump administration to come out with updates to the order if they want these elements in effect–updates which could face their own legal challenges.

What’s more, the Supreme Court currently has only eight sitting members.  With a very close ideological split in the Supreme Court, as well as a low chance of appointing a ninth member in time to address the issue, it is possible that the Supreme Court may simply deadlock on the issue as they have many times over the last year of inaction on the seat.  This would leave the 9th Circuit ruling in full force.

Still to come is the decision on the actual constitutionality of the order.  The 9th Circuit itself was fairly non-committal on the issue, simply stating that both sides had powerful interests in conflict–the government with an interest in national security and the power of executive orders, the public with an interest in free flow of travel, avoiding separation of families, and freedom from discrimination.  However, what they did rule on the issue was that the courts should consider the past statements of President Trump and his advisers as to whether the immigration ban was meant to target Muslims in a discriminatory fashion.  With President Trump and his advisors frequently declaring, both on the campaign trail and once in office, that an immigration ban targeting Muslims and favoring Christians is on their agenda it seems that this would allow in strong evidence that the “Muslim Ban” is in fact discriminatory and unconstitutional.

Trump Continues his Concerning Disdain for the Court System

As you might have noticed from his argument to the court in this case, President Trump has a penchant for a concerning belief that the he is above the Judiciary Branch of the U.S. Government.  Immediately after the ruling he took to Twitter to again publically blast the decision.  He has repeatedly questioned the intelligence and competence of every judge who has stood in his way.  Just this week he has publically called the courts “disgraceful,” said that they have less understanding than “a bad high school student,” and heavily implied political bias in the entire U.S. Judiciary system.  To say this lack of respect and understanding for the third branch ensuring checks and balances within our government is disturbing would be an understatement.  Even Neil Gorusch, Trump’s own nominee for the Supreme Court, has called his attitude “demoralizing” and “disheartening.”  Hopefully, a unanimous bi-partisan decision such as this will help him understand the importance of law.

Understanding President Trump’s Muslim-Based Immigration Ban

Since President Trump’s inauguration, his presidency has been fraught with controversy. Trump ran his presidential campaign on a platform that pledged he would “Make America Great Again.” Among his promises were to bar immigration from Muslim nations. Now he’s trying to make good on his promise.

As one of his first orders of business, President Trump signed an executive order on Friday that indefinitely suspends admissions for Syrian refugees to the United States. It further banned all refugees from Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen from entering the United States while prioritizing Christian refugees.

What Exactly Does the Order Do?

Under a guise of protecting Americans from acts of terrorism, President Trump calls his order “extreme vetting” of immigrants. He is careful not to call it a “Muslim Ban.” Instead the order is titled, “Protection of the Nation from Foreign Terrorist Entry into the United States,” and it will restrict entry from countries with a “history of terrorism.”

The order will suspend the entire U.S. Refugee Admissions program for 120 days, thereby blocking all refugees from all countries from resettling in the United States. Additionally, people from Iraq, Syria, Libya, Yemen, Somalia, Sudan and Iran will be barred from entering the United States for 90 days regardless of if they have valid visas. After the 90 days, permanent visa bans could be enacted for those countries and for others. The order also caps the amount of refugees who may be admitted to the United States at 50,000 immigrants, down 60,000 from last year.

Donald Trump

What is an Executive Order?

An executive order is an official statement from the President of the United States regarding how federal agencies are to use their resources. So long as the order is not against any existing laws, they are legally binding for federal agencies. The President is not creating new laws, but instead instructing the government how it must work within the confines of existing law set by the Constitution and Congress. While the Supreme Court may overturn any executive order, it is very rare. Congress may also limit executive orders.

What exactly gives the President such powers? Article II of the Constitution gives the President broad powers under “executive actions.” Executive actions generally are known to include executive orders, but they also include presidential memorandums (basically a step below executive powers), proclamations and directives.

Is a Muslim Ban Legal?

People are already questioning the legality of President Trump’s Muslim ban. Executive orders are legal so long as they do not conflict with existing law. Trump cannot, for example, sign an executive order requiring torture of any enemy combatant. Congress issued a law banning torture of U.S. prisoners back in 2015, and any order allowing torture would fly in the face of existing law.

In the 19th Century, the U.S. enacted laws which excluded all Chinese and almost all Japanese from entering the country. Based on this discriminatory history, Congress passed a law more than 50 years ago that outlawed discrimination against immigrants based on national origin. So no, Trump’s discriminatory Muslim-based ban is not legal. Because Trump is targeting Muslim-majority countries while prioritizing Christian refugees, he couldn’t even argue his order does not deliberately discriminate against Muslims, although he will.

On Saturday, the American Civil Liberties Union (“ACLU”) obtained an emergency stay from a federal New York judge which temporarily halts the deportation of refugees detained in the United States after Trump issued his Muslim-ban. This means that any immigrant, and certainly those from Muslim-majority countries, cannot be deported back to their home country despite Trump’s executive order.

Something to Remember

It’s also important to note that President Trump’s proposed list of banned countries does not include Muslim-majority countries where he has business links. Notably absent from the Muslim ban are Turkey, where Trump has two luxury towers, the United Arab Emirates, where Trump has golf courses, and Egypt, the location of two Trump business companies. Surely, this presents a potential conflict of interest where he is electing not to ban certain Muslim-majority countries because of his business ties, even though these countries also have a history of terrorism.

With all the controversy surrounding Trump’s first full week of office and his approval rating going down steadily, only time will tell whether he will hold firm on his Muslim-based immigration ban.

So How About that Wall?

President-elect Donald Trump made building a wall on the US-Mexico border a pillar of his campaign. Post-election interviews reveal he intends to keep and act upon this campaign promise. No matter one’s opinion on whether building such a wall is right course of action, there are many practical concerns to be addressed.

How Big and How Expensive will it be?

The US-Mexico border is 1,989 miles long and the President-elect has proposed 35-foot-tall walls. As far as cost, some good estimates can be made as US Customs and Border Protection already began building some fences in 2007 and the Government Accountability Office released a report on the costs and issues faced. The GAO reported that the amount of fence constructed already has cost up to $5 million per mile. Basic math then tells us that this could cost $10 billion just for a fence along the entirety of the border. However, the President-elect has promised a “wall”, this may prove to be even more expensive. Furthermore, the current work was done to tackle areas of public land first to avoid dealing with private land owners. Eventually, the government must either get permission to build across private land or take the land through a process called eminent domain.

How will the Government Get the Land?

Trump and the WallCan the government really take land from private land owners? Yes, it can, both state governments and the federal government may do so. The Constitution specifically allows the government to do so as long as they pay fair market value for the land. That is, if the government wishes to seize the land and the owner refuses to sell it willingly the government may seize it against the owner’s wishes as long as the government pays fair market value.

Another requirement is the seized land must be used for some public purpose. This mean that eminent domain cannot be used to seize land for purely private purposes. For example, a state governor could not use eminent domain to seize land for their friend to build a private home on the land. On the other side, clearly public uses are easily approved, such as seizing land for public utility purposes like electricity poles and telephone cables. Many projects fall in the middle of this spectrum so the legitimacy of eminent domain is questionable in these areas. However, Supreme Court cases on this issue though have found this to be almost a non-issue. In particular, the Supreme Court case of Kelo v. City of New London rendered this issue almost unimportant. In Kelo, the city of New London, Connecticut wished to seize Ms. Susette Kelo’s home so that the headquarters of a private company could be built on the land. While Ms. Kelo asserted that this was a private use, the Supreme Court disagreed. The ruling in Kelo has set precedent that questionable eminent domain takings will usually be upheld by US courts.

Overall, a border wall would likely not encounter any issues with eminent domain. It’s clearly for a public purpose, national security and immigration. With this hurdle passed, the only issue would be fair market value for the land. US Customs and Border Protection has already estimated this cost to be about $800,000 per mile.

Is This Already Happening?

Yes, it is already happening. When US Customs and Border Protection began building these border fences in 2007 they needed some private land that is on the US-Mexico border. Many land owners willingly sold their land, while others chose to fight the taking in court. Unfortunately for the land owners, courts consistently ruled for the federal government. This very thing happened when US Customs and Border Protection needed Dr. Eloisa G. Tamez’s ancestral land to build a border fence. Dr. Tamez took the federal government to court. In 2013 a US court ruled that US Customs and Border Protection could take Dr. Tamez’s land that had been inhabited by her family since 1767. Dr, Tamez’s case is not unusual and similar incidents are very likely to occur if the President-elect carries out his campaign promise.

Is This Really Going to Happen?

It looks like the President-elect’s plan is entirely possible and plausible. The federal government would likely be able to acquire any border land it needs for the wall through eminent domain. The only hurdle would be the cost, which would have to be set aside by Congress. However, this likely will not be an issue either as Congress has consistently approved funding for border fencing and border patrols. Overall, if the President-elect decides the act upon this campaign promise there will be very little to stop him.

What People Ought to Know About Louisiana’s New Marriage Law

Many foreign-born people have been denied marriage licenses in Louisiana after the state passed restrictions on marriage based on immigration. Proponents of this bill claim it deters marriage fraud by preventing illegal immigrants, including terrorists, from getting married. But, this bill has also prevented many legal immigrants from obtaining marriage licenses, and has mostly impacted Louisiana’s Laotian and Vietnamese refugee communities.

House Bill No. 836

The bill introduces new requirements for a Louisiana marriage license, including requiring a birth certificate. Birth certificate requirements differ for U.S.-born persons and foreign-born persons. A U.S.-born person may obtain a judge’s waiver if unable to provide a birth certificate. But, this waiver exception does not apply to people born outside the U.S., even if he or she can produce an unexpired visa or proof of citizenship.  In short, if a foreign-born person cannot produce a birth certificate, then he or she cannot get married in Louisiana.

The Story of Marilyn Cheng and Out Xanamane

Marilyn Cheung and Out Xanamane’s marriage license struggles highlight the absurdity of this bill. This Louisianan couple, like many in Louisiana’s Laotian community, had a traditional Buddhist ceremony in 1997, but never obtained a formal marriage license mistakenly believing they had a common law marriage. The couple learned they were not legally married when Mr. Xanamane discovered he had liver cancer and was not covered by Ms. Cheung’s insurance. Although the couple have lived as husband and wife for nearly 20 years and have four children together, Louisiana does not recognize common law marriages. Marriage

Subsequently, the couple went to a Louisiana courthouse to obtain a formal marriage license. Even though Mr. Xanamane brought his green card, refugee documents and driver’s license, they were turned away because Mr. Xanamane did not have a birth certificate. Mr. Xanamane has legally resided in the U.S. since 1986, but he was born in Laotian village in 1975 when the country fell to communism. His family fled the country and he never received a birth certificate. Thus, despite Mr. Xanamane’s liver condition, the couple drove fourteen hours round -trip to Alabama where the court accepted Mr. Xanamane’s immigration documents and issued them a marriage license.

Ms. Cheung and Mr. Xanamane are not the only couple enduring hardships under this new law. Since the law was enacted, about six to eight couples every month have been denied marriage licenses in Orleans Parish alone.

Is the Bill Xenophobic or a Necessary Protection of American Sovereignty?

Proponents claim this legislation prevents illegal immigrants, and possibly terrorists, from obtaining citizenship through marriage. But, the birth certificate requirement place unnecessary burdens on legal immigrants, particularly on Louisiana’s Laotian and Vietnamese refugee communities.

Many foreign-born people legally reside in the U.S. without birth certificates. Simply requiring valid immigration paperwork, like Alabama, would be equally effective in preventing illegal immigrants from obtaining marriage licenses. Moreover, requiring birth certificates unlikely deters terrorists legally in the U.S. from marriage, since many terrorists come from countries, including the U.S., that do issue birth certificates.

While the bill remains ineffective in deterring terrorists from marriage, it does have a disproportionate impact on Louisiana’s Vietnamese and Laotian refugee communities. In the 1970s and 1980s, many refugees from Vietnam and Laos went to Louisiana to seek asylum from war and communism. Many of these former refugees have since obtained green cards or U.S. citizenship, but do not have birth certificates. Refugees and other immigrants fleeing violent-life threatening situations, were either never issued birth certificates or were unable to bring one. Moreover, refugees tend to come from countries with failed governments, and thus, it would be impossible to obtain a birth certificate, even if one was originally issued.

Since the birth certificate requirement is unnecessary to achieve its purpose in preventing illegal immigrants from marriage, we can only conclude it was enacted to place hardships on the Vietnamese and Laotian refugee communities in Louisiana. But, if we give Louisiana’s legislature the benefit of the doubt, the bill is at best a poorly thought-out law that needlessly inconveniences foreign-born people living in United States legally.