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Immigration Ban 2.0 and the Courts.

This past Wednesday (March 15, 2017), the Hawaii District Court issued a nationwide temporary restraining order halting the implementation of President Trump’s new immigration ban. In the few short hours that followed, the District Court of Maryland issued a preliminary injunction order that struck down several key provisions of the ban, including the controversial halt on immigration from six predominantly Islamic countries. The courts’ decisions signaled yet another scathing blow to the Trump administration’s efforts to fulfill one of several contentious campaign promises under the auspices of preserving national security. After the Ninth Circuit upheld a lower court’s temporary restraining order enjoining the first ban, the matter is now likely to find its way to the Supreme Court where its fate will ultimately be decided.

In considering the matter before the courts, several legal questions come into play. Indeed, it is crucial to distinguish the Hawaii and Maryland courts’ decisions from what will be a more thorough review of the ban’s constitutional merits either at trial or eventual review by the Supreme Court. To put it simply, Hawaii’s “temporary restraining order” places a 14-day freeze on the ban’s implementation pending more thorough argument and review of the merits by the court. Likewise, the Maryland court’s “preliminary injunction” has a similar effect with the exception that litigants typically have already been given adequate time to submit and reply to arguments. By most standards, the district courts’ issuing of TROs or preliminary injunctions bears the necessary legal muster when A.) the action in question has immediate and longstanding effects and B.) when the courts agree to allow both parties to submit more detailed briefs on the matter’s merits so that an appropriate decision may be delivered. In short, the buck certainly does not stop here and both sides still have a great deal of complicated work ahead of them.

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What is ultimately more important is the obvious question: What’s next? First, the Department of Justice should focus on filing formal appellate briefs with the Fourth Circuit Court of Appels against the Maryland District Court’s decision. Hawaii’s TRO (as was the case in the prior proceedings at the Ninth Circuit) remains procedurally immune from appeal given the order’s short duration (see, e.g., McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986)). In the case of the first ban, the Ninth Circuit controversially treated the lower court’s TRO as a preliminary injunction given the “extraordinary circumstances of this case.” In other words, the real analysis of the injunction’s merits ought to come from the Maryland court in order to remain procedurally sound. After the courts sort out this issue, a more thorough review of the ban’s general constitutional merits can be considered.

Again, on the overall constitutionality of Mr. Trump’s executive order, several legal issues come into play. As Garrett Epps at The Atlantic notes, the first issue “is the statutory issue” which involves a conflict between “two key provisions of the Immigration and Nationality Act.” Under 8 U.S.C. § 1182(f), the president may “find that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States […] and suspend entry” of said immigrants. While this ostensibly gives the Trump administration a stronger legal position, an addendum added in 1965 under § 1152(1)(A) stipulates 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.” Provided the court applies the language of the act (as it should) against the executive order, it should be clear that at minimum President Trump is in violation of existing statutory guidelines by prohibiting immigrant entry based on nationality and place of residence.

The government could veritably make the counter-argument that the above mentioned act does not explicitly ban discrimination based on religion and that, even if it did, the president could still wield executive privilege on the basis that the ban is total. However, the ban makes a “case by case” exemption for religious minorities in the affected countries—most of whom are Christians. An exemption of this sort diminishes the “total ban” argument and would then require the courts to consider disparate impacts on those affected by the ban under the Equal Protection Clause of the Fourteenth Amendment. It is important to remember that while constitutional protections do not apply directly to non-U.S. residents, they certainly still apply to visa-holders and dual-citizens affected by the ban. As such, a clear reading of the clause would show a systematic effort to discriminate against an individual (in this case) on the basis of nationality.

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At this point, the government could try to argue that the president has the constitutional ability to wield emergency powers and suspend certain rights or privileges. While Article I, Section 8 (War Powers Clause) of the Constitution does not explicitly grant the president emergency powers in times of war or crisis, the courts have recognized that the president may wield such authority if granted by Congress. Indeed, under this framework, the government would need to provide both substantiated national security concerns linked with immigration from the affected countries and a further recasting of what constitutes a state of “war” or “crisis” in which the president is able to wield such substantial authority.

While the jury is certainly still out with regard to the ultimate fate of Mr. Trump’s immigration ban, the entire world will surely be watching to see what decision we make: A.) Recognize a clear violation of statutory and constitutional guidelines or B.) Hide behind the nebulous veil of national security concerns.

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