Overreach And (Partially) Overturned: President Trump’s Executive Order On Immigration Roils The Courts And The Country

February 7, 2017
Guest Post

by Richard Harris, CEO, Momentum Communications

President Trump’s Executive Order on Immigration: Executive Action Provokes A National Reaction:

President Donald Trump, wearing a broad smile for both the cameras and his assembled audience, affixed his signature to possibly the most controversial Executive Order of his early and already tumultuous presidency. The Executive Order, bearing the title: “Protecting The Nation From Attacks By Foreign Nationals,” suspends “Visa Issuance and Immigration Privileges” to the following seven countries: Sudan, Iraq, Iran, Libya, Sudan, Somalia and Yemen. The Executive Order suspends refugee immigration for a period of 120 days and prohibits the immigration of Syrian refugee to the United States indefinitely.

Signed into law at 4:42 p.m. on Jan. 27, 2017, President Trump’s Executive Order on Immigration is sweeping in its scope and immediate in its impact. It launched an instantaneous and spirited public response, which was in stark contrast to the applause and approval accorded to President Trump during the Executive Order’s high profile signing ceremony:

  • During the 27 hours that all provisions of the Executive Order on Immigration remained in effect, hundreds of ‘Green Card holders,’ individuals—who are legal, permanent residents of the United States—were detained upon their arrival at U.S. airports, prevented from flying to the United States from airports overseas, and/or returned to their country of origin.
  • Our nation’s airports suddenly became epicenters of peaceful resistance to the effect of the Executive Order on Immigration. Thousands of people descended upon airports in New York (JFK), Los Angeles (LAX), Seattle (Sea-Tac) and other major cities, to loudly and defiantly protest implementation of the Executive Order on Immigration.
  • Attorneys transformed airport waiting areas into impromptu legal clinics, filing Habeas petitions on behalf of Green Card holders, for whom implementation of the Executive Order on Immigration resulted in their capricious and illegal detention. Lawyers from the ACLU filed an Emergency Motion For The Stay of Removal on behalf of Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq, two Iraqi permanent legal residents of the USA who faced immediate removal.
  • Ruling in the matter of Darweesh vs. Trump-17. 480 (AMD), Judge Ann Donnelly of the Eastern District of New York, granted the Emergency Stay, stating in her ruling that the Petitioners “have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.” Judge Donnelly issued her ruling at 9:00 p.m. on Jan. 28, and her ruling was followed quickly by similar rulings in Massachusetts, Virginia and Washington.
  • Scarcely 27 hours and 18 minutes after its issuance, President Trump’s Executive Order on immigration had failed the first test of its constitutionality.

Construction, Constitutionality and Conflict: How the Executive Order on Immigration Conflicts with Our Constitution and Current Immigration Statutes:

Judge Donnelly’s holding in Darweesh vs. Trump-17. 480 (AMD), concurrent rulings from District Courts in Massachusetts, Washington and Virginia—together with the defiant action of Sally Q. Yates, the former acting attorney general, who ordered the Department of Justice not to enforce the provisions of President Trump’s Executive Order on immigration—throw a glaring spotlight on the numerous constitutional and statutory conflicts inherent in the Executive Order on immigration:

National Origin Based Immigration Policies Are Illegal:

President Trump’s Executive Order on Immigration suspends “Visa Issuance and Immigration Privileges” based on national origin. Discrimination in the application of immigration privileges based on national origin, is prohibited by the Immigration and Nationality Act of 1965 (Public Law 89-236-Oct 3, 1965). Public Law 89-236 specifically states that no person eligible for immigration status shall 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.”  Therefore, Section 3 of the Executive Order on Immigration, “Suspension of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern,” is on its face, in violation of The Immigration and Nationality Act of 1965.

Advocates of the President’s Executive Order on immigration cite 8 U.S.C. § 1182(f) of the 1952 Immigration and Nationality Act (INA), as providing the president with the legal authority to make certain classes of aliens inadmissible for visas and admission into the United States. However, the 1965 law expressly states that the anti-discrimination provision does not apply to sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of Title 8 of the U.S. Code. Indeed, in accordance with the cannon of expressio unius est exclusio alterius, (‘the express mention of one thing excludes all others’), the newer anti-discrimination provision prohibits the president from suspending the entry of any class of aliens based on national origin.

Violations of Fifth Amendment Protections and The Right of Due Process:

The provisions of President Trump’s Executive Order on Immigration as implemented originally, were extended to those resident aliens ('Green Card holders'), who were also citizens of the countries covered by the Executive Order on immigration. Upon effectuation of the Executive Order on immigration, this class of resident aliens, who were in transit, upon landing in the United States, were returned to the country of origin, or while awaiting flights to the United States, were prohibited from returning to the United States.

These actions are clear violations of the Fifth Amendment which states that no person shall "be deprived of life, liberty, or property, without due process of law." Essential constitutional protections are extended to legally resident 'persons' as well United States citizens. These Green Card holders were detained, refused transport to the United States and/or returned to their countries of origin without a hearing. This prima facie violation of the Due Process Clause, among other constitutional considerations, compelled the Eastern District of New York to issue an Emergency Stay of that section of the Executive Order. (Darweesh v. Trump-17. 480 (AMD).

Conclusion: Protecting Our Country Starts By Protecting Our Values:

President Trump’s Executive Order on immigration, which bans immigration as well as refugee resettlement based on national origin—is targeted towards curtailing immigration from Muslim-majority and Middle Eastern nations. This Executive Order is the first in a series of executive and statutory actions seeking to establish immigration policies which clearly discriminate against applicants based upon their country of origin and their religion. Advocating discriminatory conduct based on national origin and/or religion is a direct and shameful contradiction of American values.

President Trump’s Executive Order on immigration fails to make us safer or stronger. Indeed, this Executive Order will make us weaker, in the eyes of the world and within our own consciences. A safe and strong America demands that we develop immigration and refugee resettlement policies which, at a minimum, do not conflict with the United States Constitution and existing laws. Most importantly, our immigration statutes must be a testament of what America must always stand for in the world: a nation which cherishes liberty, provides opportunity and that will always welcome people of every religion, creed, race and ancestry.