“See You In Court!”: An Exploration of President Trump’s Executive Immigration Order

ELIZABETH MCINTOSH—Meet Hameed Khalid Darweesh, one of the many people affected by President Trump’s Executive Order titled Protecting the Nation from Foreign Terrorist Entry into the United States issued on January 27, 2017. Darweesh, a husband and a father, risked his life as a U.S. Army translator in his home country of Iraq. He and his family found themselves detained at JFK Airport for 18 hours under Trump’s new refugee ban, as he tried to enter the United States for his first day in America. He said that he thought his service to the United States government, as well as his travel documents, would get him into the country; however, under the new executive order, this was not the case. It took Darweesh and his family nearly two years to receive the special immigrant visa, before deciding to move to Charlotte, NC. Darweesh was twice targeted by terrorists in Iraq after working as an interpreter for the United States Army 101st Airborne Division in Mosul and Baghdad, following the United States invasion of Iraq in April 2003. Two of his colleagues were murdered by Iraqi attackers for their service with the United States Army. When asked whether he would be killed if he returned to Iraq, he bowed his head and said, “yes.” He stated, “I supported the government from the other side, but when I came here they said no, they treat me as if I break the rules or did something wrong.”

Trump’s Executive Order affects many like Darweesh, people legally living in this country who are afraid to leave, and people in affected countries with plans to start a new life in America. For 120 days, President Trump’s Executive Order bars the entry of any refugee who is awaiting resettlement in the United States. It prohibits Syrian refugees from entering the United States until further notice and it bans the citizens of seven Muslim-majority countries (Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen) from entering the United States on any visa category.

Upon issuance of the Executive Order, lawyers across the country immediately went to work, setting up impromptu crisis centers at airports to offer legal services to those affected by the Order.

Most recently, on January 30, 2017, the State of Washington filed a complaint seeking declaratory and injunctive relief against President Trump, the Department of Homeland Security, the Secretary of the Department of Homeland Security, and the Secretary of State, as well as the United States of America. The State of Minnesota joined the complaint on February 1, 2017, seeking declaratory relief invalidating portions of the Executive Order. On February 3, 2017, Judge James L. Robart, in the Western District of Seattle, issued an order granting Washington State’s motion and deeming the TRO necessary. As Judge Robart states, “[t]he proper legal standard for preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.’” In addition, the moving party, here the States, bears the burden of persuasion “and must make a clear showing that it is entitled to relief.”

Robart determined that the States have satisfied the standard, specifically, that they “are likely to succeed on the merits of the claim that would entitle them to relief[.]” The States proved that “[t]he Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.” Additionally, “the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.” He went on to state, “[t]hese harms are significant and ongoing.” Importantly, while the defendants argued that any TRO should be limited to the States at issue, Judge Robart determined that “the resulting partial implementation of the Executive Order ‘would undermine the constitutional imperative of a ‘uniform Rule of Naturalization’ and Congress’ instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’” Therefore, the order applies nationwide.

Upon issuance of Judge Robart’s order, the Justice Department filed papers notifying the District Court that it would seek to have the United States Court of Appeals for the Ninth Circuit block the lower court’s ruling. Specifically, the filing emphasized that halting enforcement of the Executive Order “’harms the public’ and ‘second-guesses the President’s national security judgment’ in the immigration context.” Specifically, the Justice Department stated that “[Robart’s ruling] contravenes the considered judgment of Congress that the President should have the unreviewable authority to suspend the admission of any class of aliens.” Further, the filing stated that courts are “particularly ill-equipped to second-guess the President’s prospective judgment about future risks. Unlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” However, on February 9, 2017, a panel of judges for the Ninth Circuit Court of Appeals unanimously denied the government’s request to lift the nationwide injunction that had been placed on President Trump’s immigration executive order.

Meanwhile, earlier this month, a federal judge in Massachusetts sided with the Trump administration. U.S. District Judge Nathaniel Gorton held that the President does have the authority on national-security grounds to bar citizens from Iran, Iraq, Syria, Somalia, Sudan, Libya, and Yemen. These different rulings may eventually reach the Supreme Court of the United States; however, if it reaches it before a new justice is appointed and the Judges are split 4-4, it is unclear what the resolution will be.

These debates raise separation of powers questions, as the Executive Branch controls the entry of foreign nationals into our country. But as Judge Robart said, “[t]he work of the Judiciary, and this court, is limited to ensuring that the actions taken by the two [other] branches comport with our country’s laws, and more importantly, our Constitution.” These actions by lawyers and judges reflect the more active role state legal officers have played in the recent years. However, Mr. McKenna, a Republican and former Washington State attorney general stated, “I think [the Washington attorney general] has a steep hill to climb, to overcome the [P]resident’s constitutional statutory authority to control immigration.”

However, Robart’s order leaves open many questions:  Does the Executive Order violate the Equal Protection Clause, or the free exercise of religion? Does the Executive Order deprive immigrants of due process of law? But as Darweesh stated, “America is the land of freedom, the land of life. This is why I came here. Really, I am very thankful.” We as America need to live up to this promise! Currently, refugees and immigrants are allowed entry into the United States. Make haste!

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