Trump’s Immigration Ban: Where it Stands Now

Tyler Larkworthy is a freshman at the University of Pennsylvania studying computer science and economics.
Editor’s Note: this piece was written before the recently issued executive order instituting a new version of the travel ban.

The first month of the Trump presidency has seen divisive policy decisions and bitter legal pushback, epitomized by the controversial travel ban issued on January 27. The ban, enacted by Executive Order 13769, is valid for 90 days and applies to seven countries which have Muslim-majority populations. [1] After switching positions several times, the federal government decided that the ban did not apply to green card holders, meaning that US permanent residents from the seven restricted countries could still lawfully enter the country.

The ban faced near immediate challenge in numerous states. [2] On February 3, Judge James Robart issued a temporary restraining order against the ban, though the lawsuit in the US District Court for the Western District of Washington remains pending. [3] The Trump administration appealed Robart’s order to the Ninth Circuit Court. A panel of three judges on the 9th Circuit ruled against the Trump administration, leaving the restraining order in place and signifying an end to implementation of the ban.

What can the Trump administration do now? They might  move for an en banc review of the restraining order in the Ninth Circuit, meaning that all of the judges on the Circuit would hear the case and issue a majority opinion. The administration might also wait for the District court case,building their argument in the meantime. Most likely, the Trump administration will opt to rewrite the executive order to avoid further  strike downs. [2]

What would a rewritten executive order look like? A new order would likely take into account advice from many who were not consulted during the drafting of the initial ban, such as the White House legal counsel. [2] A new ban also may not apply to those who currently hold visas from the seven affected countries. [2]

In his decision to issue the temporary restraining order, Judge Robart argued that the states were likely to succeed in the District court case on the merits of their claims, and that leaving the ban in place would cause serious harm to the states. [3] In issuing so, Robart used the Winter test. [3] The states in the suit,Washington and Minnesota, argued that the executive order had harmed their interests, particularly their universities, by preventing faculty and students from the impacted countries from being able to travel freely. [4] They also noted that companies based in their state were unable to recruit workers from affected countries. [4]

On the other hand, n the text of the executive order, the government argued that it had authority to implement the ban under the Immigration and Naturalization Act. [5] The government argued in the initial case that the courts had no jurisdiction to review the order, asserting that the president’s constitutional power to control immigration was not reviewable. [3]

Regardless of what happens next, the Trump administration is sure to bring more divisive court cases and unprecedented legal developments.


[1]  Miles Parks and Jane Arraf. "With Trump's Travel Ban blocked, Visa Holders, Refuges Scramble to Board Flights." NPR. February 5, 2017. Accessed February 23, 2017. http://www.npr.org/sections/thetwo-way/2017/02/05/513548211/with-trumps-travel-ban-blocked-visa-holders-refugees-scramble-to-board-flights
[2]  Stephen Collinson, Tal Kopan, and Dana Bash. "Huge Stakes for Trump Immigration Do-over." CNN. February 22, 2017. Accessed February 23, 2017. http://www.cnn.com/2017/02/22/politics/donald-trump-immigration-ban-stakes/
[3]  Washington v. Trump, C17-0141JLR (2017). Accessed February 22, 2017. https://www.documentcloud.org/documents/3446391-Robart-Order.html
[4]  Washington v. Trump, 17-35105, D.C. No. 2:17-cv-00141 (2017). Accessed February 21, 2017. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
[5]  "Executive Order: Protecting The Nation from Foreign Terrorist Entry into the United States." The White House. January 27, 2017. Accessed February 22, 2017. https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states

Photo Credit: Flickr User Karl-Ludwig Poggemann

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