{"id":1980,"date":"2019-12-06T04:32:26","date_gmt":"2019-12-06T04:32:26","guid":{"rendered":"https:\/\/delaneysilva.com\/blog\/?p=1980"},"modified":"2019-12-09T18:33:10","modified_gmt":"2019-12-09T18:33:10","slug":"the-u-s-travel-ban-under-scrutiny-by-the-courts","status":"publish","type":"post","link":"https:\/\/delaneysilva.com\/blog\/the-u-s-travel-ban-under-scrutiny-by-the-courts\/","title":{"rendered":"The U.S. Travel Ban: Under Scrutiny by the Courts"},"content":{"rendered":"\n<p class=\"wp-block-paragraph\">Tensions are high as Donald Trump, the new U.S. President, continues \nto test the boundaries of the U.S. political and legal systems. The most\n recent clash pits the U.S. Constitution against Trump for what appears \nto be the first time the President \u2014 and perhaps even Trump the man \u2014 is\n subject to limits.&nbsp; Whether one agrees with Trump and his policies, as \nresponsible citizens, businesspeople, scholars and practitioners, this \nmost recent debate over his so-called <em>travel ban<\/em> requires us to\n look beyond any prejudices against Trump the man, and take a meaningful\n look at the constitutional and legal aspects of the Executive Order \nitself based on various court decisions issued over the last few weeks.<\/p>\n\n\n\n<p class=\"has-medium-font-size wp-block-paragraph\"><strong><em>What Happened?<\/em><\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">On January 27, 2017, the President issued Executive Order 13769 entitled <em>Protecting the Nation from Foreign Terrorist Entry Into the United States<\/em>\n (\u201cthe Order\u201d). There was a substantial and immediate effect felt by \nmany throughout the U.S. and abroad which gave rise to various lawsuits \nseeking to temporarily suspend the Order. In most instances, the \nPlaintiffs sought Temporary Restraining Orders (\u201cTROs\u201d) with the \nobjective of issuing a non-permanent stay on the enforcement of the \nOrder and, in most cases, they were granted. Subsequently, the various \nparties sought to convert those temporary TROs into Preliminary \nInjunctions (to make them permanent); or, in the case in the State of \nWashington, the Government (the Trump Administration) sought to have the\n TRO lifted.<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-style-default is-layout-flow wp-block-quote-is-layout-flow\"><p><strong>&#8220;What is clear is that the U.S. Constitution and its institutions are alive and working.&#8221;<\/strong><\/p><\/blockquote>\n\n\n\n<p class=\"wp-block-paragraph\">As result of these cases, conflicting decisions came out of two \ndifferent District Courts in the U.S. On February 3, the District Court \nof Washington imposed a nation-wide TRO, while, on the very same day, \nthe District Court of Massachusetts lifted a previous TROs and refused \nto provide further injunctions against the Order. The Government filed \nan emergency motion to stay the Washington TRO in the Court of Appeals \nof the Ninth Circuit. A 3-judge panel of the Ninth Circuit, on February \n9, issued a unanimous ruling in which it decided to maintain the \nnation-wide TRO. Accordingly, the Order <em>as it relates to Sections 3(c), 5(a) and 5(b),<\/em> was invalided.<\/p>\n\n\n\n<p class=\"has-medium-font-size wp-block-paragraph\"><strong><em>What Does The Executive Order Say?<\/em><\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">As stated therein, the Order\u2019s aim is to protect national security \nand to provide a period of review of current immigration and entry \nprocedures into the U.S. The Order in its entirety has not been \nchallenged; only Sections 3(c), 5(a) and 5(b) are at issue. Section 3(c)\n suspends entry into the United States to those immigrants and \nnonimmigrants for 90 days who are nationals from Iraq, Iran, Somalia, \nLibya, Yemen, Syria and Sudan.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"> Section 5(a), in short, suspends entry into the U.S. of all refugees  for 120 days, and Section 5(b) goes on to allow the Secretary of State,  with consultation by the Secretary of Homeland Security, to \u201c\u2026prioritize  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\u2019s country of nationality.\u201d<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Although the decisions issued by the courts do not include an  analysis of these Sections, it is important to mention that Sections  3(g) and 5(e) provide for case-by-case review by the Secretary of State  in conjunction with the Secretary of Homeland Security \u201c\u2026when the person  is already in transit and denying admission would cause undue  hardship.\u201d<\/p>\n\n\n\n<p class=\"has-medium-font-size wp-block-paragraph\"><strong><em>What Did The Courts Decide?<\/em><\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Section 3(c) denies entry to \u201cimmigrant and nonimmigrant\u201d nationals \nfrom the 7 countries \u201cof concern\u201d for 90 days.&nbsp; The major mistake of the\n order is that it does not clearly distinguish between legal permanent \nresidents (\u201cLPRs\u201d) and other visa-holders. In the U.S., there are \nseveral types of immigration statuses: LPRs, those that are on a path to\n being LPRs, tourists, temporary workers, student visa-holders or even \nundocumented persons, just to name a few. Well-established rules do not \nafford the same protections to all statuses. For example, the law \nclearly extends full constitutional protection to LPRs, but only Fifth \nAmendment Rights (due process) to those non-immigrants who are \nphysically in the U.S. Even still, a refugee who is overseas applying to\n enter the U.S. does not have any constitutional rights under U.S. law.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Most agree that if applicable to LPRs, Section 3 is invalid and the \nWhite House issued a statement clarifying that the Order does not apply \nto LPRs. The Ninth Circuit, however, did not find the statement of \nclarification \u2018enough\u2019 to modify an executive order and, since the Order\n did not differentiate between the statuses, the Court held that the \nentire section was invalid. This was a mistake by both the Government \nand the Court.&nbsp; The Government should have issued a modification or \namendment to the Order definitively excluding LPRs from its application.\n Additionally, the Ninth Circuit was remise in muddling all the statuses\n together and applying LPR constitutional protections to even \nnonimmigrants, without distinction.&nbsp; It is important to note, that the \nlaws of the U.S. <em>do not<\/em> apply to those non-citizens <em>outside <\/em>the U.S. The law views the issuance of visas as a <em>privilege<\/em>, not as a <em>right<\/em>, which can be subsequently revoked. Thus, as it relates to <em>non<\/em>-LPRs, the Order should be valid and enforceable, as found by the Massachusetts Court.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Another challenge faced in Section 3(c) is whether it violates the \nEqual Protection Clause of the Constitution by treating groups \ndifferently (relying on the argument that the 7 countries \u201cof concern\u201d \nwere identified merely because they have a majority Muslim population). \nThe Ninth Circuit and the Massachusetts Court had conflicting decisions.\n The Ninth Circuit used \u201creligion\u201d to classify those affected; the \nMassachusetts Court, on the other hand, used the immigration \nclassification of \u201caliens\u201d. This is significant because a religious \nclassification of alleged discrimination is afforded the highest \nstandard of protection, while alien status is afforded the lowest. That \nis to say, in order to treat those groups differently based on religion,\n the state needs to show a <em>compelling state interest<\/em> for the \ndiscriminatory treatment. On the other hand, if the classification is \nbased on alien status, the state only must show that there is a <em>legitimate reason<\/em>\n for the discriminatory treatment, a much lower standard.&nbsp; While the \nNinth Circuit is the current law in the United States, there is doubt as\n to whether they were remiss in using a religious classification rather \nthan an immigration one, particularly since, on the face of the Order, \nreligion is not mentioned in this Section 3.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Where it is much easier to question a religion-based violation is in \nSection 5(b) which allows the Secretary of State, with consultation by \nthe Secretary of Homeland Security, to \u201c\u2026prioritize refugee claims made \nby individuals on the basis of religious-based persecution, provided \nthat the religion of the individual is a minority religion in the \nindividual\u2019s country of nationality.\u201d&nbsp; The claim is that this Section \nviolates the Establishment Clause in the Constitution by preferring one \nreligion over another.&nbsp; In fact, neither the Ninth Circuit nor the \nMassachusetts Court ever reach an analysis of this claim since they \ndisposed of their respective cases on other grounds.&nbsp; The States in the \nNinth Circuit do not argue that the Order is facially invalid as to \nreligious discrimination; but, due to the <em>intent<\/em> of the \nPresident to ban Muslims \u2014 as publicly stated by Trump on various \noccasions \u2014 it is, in effect and application, unconstitutional.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The Government, on the other hand, argues that (1) the refugee suspension applies to <em>all<\/em>\n countries \u2014 not only to majority-Muslim countries \u2014 and (2) the \nsuspension as to the 7 countries was based on the fact that they were \nsafe havens for terrorists and identified as such by various sources, \nsuch as the U.S. Congress, the U.S. State Department and even the Obama \nAdministration. Accordingly, since there is not religious preference or \nnon-preference at issue, there is no violation.&nbsp; Since no court has \nruled on this issue, there is no clear guidance and the question remains\n as to whether there is a violation or not in this Section 5.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Interestingly, what did not get much attention were Sections 3(g) and\n 5(e), which provide for case-by-case review by the Secretary of State \nin conjunction with the Secretary of Homeland Security \u201c\u2026when the person\n is already in transit and denying admission would cause undue \nhardship.\u201d Much of the objections to and criticisms of the Order focused\n on LPRs, student and worker visa-holders, those in transit, and those \nwho suffered unreasonable hardships. Those criticism and concerns are \nsurely not misplaced and should not be ignored. With that said, pursuant\n to Sections 3(g) and 5(e), the Order provides for a review mechanism \nfor various cases. The media and the courts were remiss in not giving \nmore attention to these Sections.<\/p>\n\n\n\n<p class=\"has-medium-font-size wp-block-paragraph\"><strong><em>How Did It End?<\/em><\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The law aside, the Trump Administration committed serious errors in \nthe manner in which the Order was implemented. First, the Order should \nhave clearly omitted application to LPRs. Secondly, the enforcement \nshould not have been from one minute to the next so as to cause chaos to\n those in transit. Additionally, airlines and Border Patrol Officers \nshould have been provided with more notice and guidance on the \napplication of the Order. Finally, those student and worker visa-holders\n should have been provided more notice and deference as to the \napplication of the Order to them, whether they were on U.S. soil or \nabroad, since they, more than any other alien group, were likely to \nsuffer the most hardship under the Order.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The Government stated that they would not appeal the case to the U.S.\n Supreme Court. One major issue is that there are currently 8 Justices \non the Supreme Court, rather than 9, since the vacancy of late Justice \nAntonin Scalia has not yet been filled. If there is a 4 to 4 ruling, \nwhich is highly possible, the decision of the Ninth Circuit will stand, \nwhich would be a huge blow to the Trump Administration.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Despite having other resources and legal options to move forward in \nthe courts, Trump decided instead to issue a new executive order that \nwould demonstrate full compliance with the Ninth Circuit ruling and thus\n avoiding further objections. The new order was signed on March 6. \nHowever, this new order was again challenged and, on March 15, District \nCourts in Hawaii and Maryland both issued TRO\u2019s blocking its \nimplementation. Since the new order tried to redress some of the Ninth \nCircuit\u2019s legal concerns, arguments against the new order rely heavily \non the President\u2019s <em>intention<\/em> to religiously discriminate \nagainst Muslims, based on the public statements made by Trump himself \nand other officials from his Administration.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Not all laws or court decisions are perfect and this situation is no  exception. The Order, in both form and application, was flawed, although  not necessarily unconstitutional, as seen by the Massachusetts District  Court. And, the effect of the Ninth Circuit\u2019s ruling can be viewed as  overbroad and overreaching thereby not allow for the appropriate  administration of justice to all the parties. The Massachusetts Court,  ruling in favor of the Trump Administration, provided a more meaningful  and complete analysis of the crucial issues at stake. It is unfortunate  that the Ninth Circuit was not as acute in its decision. Despite what is  defective or not, what is clear is that the U.S. Constitution and its  institutions are alive and working, and functioned appropriately to keep  a clear distinction between the Office of the President and Trump the  man.<\/p>\n\n\n\n<div class=\"wp-block-image\"><figure class=\"aligncenter size-full\"><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" width=\"810\" height=\"500\" loading=\"lazy\" src=\"https:\/\/i0.wp.com\/delaneysilva.com\/blog\/wp-content\/uploads\/2019\/12\/TrumpExecutiveOrder.png?resize=810%2C500&#038;ssl=1\" alt=\"\" class=\"wp-image-1982\" srcset=\"https:\/\/i0.wp.com\/delaneysilva.com\/blog\/wp-content\/uploads\/2019\/12\/TrumpExecutiveOrder.png?w=810&amp;ssl=1 810w, https:\/\/i0.wp.com\/delaneysilva.com\/blog\/wp-content\/uploads\/2019\/12\/TrumpExecutiveOrder.png?resize=300%2C185&amp;ssl=1 300w, https:\/\/i0.wp.com\/delaneysilva.com\/blog\/wp-content\/uploads\/2019\/12\/TrumpExecutiveOrder.png?resize=768%2C474&amp;ssl=1 768w\" sizes=\"auto, (max-width: 810px) 100vw, 810px\" \/><\/figure><\/div>\n","protected":false},"excerpt":{"rendered":"<p>What is clear is that the U.S. Constitution and its institutions are alive and working.<\/p>\n","protected":false},"author":1,"featured_media":1981,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","om_disable_all_campaigns":false,"_uag_custom_page_level_css":"","_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"default","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"default","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center 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is clear is that the U.S. Constitution and its institutions are alive and 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