Dictator Orange Baby Demands Mooslim Ban to be Reinstated to Stop Brown Menace
Nation Safe from Annoying Tourists and Boring Diplomats. Foreign Brown Money to Find New Nation to Corrupt. Brown Invasion to Resume, Mooslim Panic to Resume While Nation Loses Mind.
Trump Schooled on Separation of Powers
President Trump is getting a crash course on the U.S. Constitution’s separation of powers as federal courts knock down his temporary immigration ban aimed at seven mostly Muslim countries, reports Marjorie Cohn.
On Jan. 27, President Trump made good on his campaign promise to institute a ban on Muslims entering the U.S. Trump’s executive order (“EO”) is titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”
The EO bars nationals from seven Muslim-majority countries from the U.S. for at least 90 days. They include Iraq, Iran, Libya, Syria, Somalia, Yemen and Sudan. The EO also indefinitely prevents Syrian refugees, even those granted visas, from entering the U.S. And it suspends the resettlement of all refugees for 120 days.
None of the 9/11 hijackers came from the seven countries covered by the EO; 15 of the 19 men hailed from Saudi Arabia, which is not on the list. No one from the seven listed countries has mounted a fatal terrorist attack in the United States.
Countries exempted from the EO include Saudi Arabia, Pakistan, Egypt, Turkey, Lebanon and the United Arab Emirates - countries where Trump apparently has business ties.
Trump’s EO violates the Establishment Clause, the Due Process Clause, the Equal Protection Clause, and the Take Care Clause of the Constitution. It also violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as well as the International Covenant on Civil and Political Rights (ICCPR); both are treaties the United States has ratified, making them part of U.S. law under the Constitution’s Supremacy Clause. The EO violates the Immigration and Nationality Act as well.
Six Federal Courts Stay Trump’s EO
In the face of legal challenges, five federal courts have temporarily stayed implementation of parts of the EO, indicating that petitioners have a strong likelihood of prevailing on the merits.
On Jan. 28, U.S. District Judge Ann Donnelly of the Eastern District of New York concluded that the petitioners “have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates Due Process and Equal Protection.” She also found “imminent danger . . . [of] substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the [EO].”
Donnelly thus enjoined respondents Trump, U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS), et al from removing anyone with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program. Holders of valid immigrant and non-immigrant visas, and other individuals from the seven listed countries who are legally authorized to enter the U.S., are also protected from removal by Donnelly’s order.
In spite of Donnelly’s order, CBP agents continued to detain immigrants at airports across the country and send them back, even though some could face persecution in their countries of origin.
On Jan. 28, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia forbade respondents Trump et al from removing the three Yemeni petitioners, who were lawful permanent residents being held at Dulles International Airport, for seven days from the issuance of her order. Brinkema further ordered CBP agents to permit attorneys access to all lawful permanent residents (green card holders) detained pursuant to the EO at Dulles International Airport pursuant.
Nevertheless, CBP agents refused to allow detained lawful permanent residents to consult with lawyers. On Feb. 1, the Commonwealth of Virginia asked a federal judge to force Trump, CBP and other high government officials to show cause why they should not be held in contempt for refusing to obey a lawful court order.
On Jan. 28, U.S. District Judge Thomas Zilly of the Western District of Washington granted a stay of removal and enjoined respondents Trump et al from removing the plaintiffs from the U.S. pending a hearing on Feb. 3.
On Jan. 29, U.S. District Judge Allison Burroughs and U.S. Magistrate Judge Judith Gail Dein of the District of Massachusetts found that Iranian petitioners, a married couple, both of whom are engineering professors at University of Massachusetts-Dartmouth, had a strong likelihood of success in establishing the detention/and or removal of them and others similarly situated would violate Due Process and Equal Protection.
The two judges also concluded petitioners were likely to suffer irreparable harm. They issued a temporary restraining order, preventing respondents Trump et al from detaining or removing for seven days individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program. Holders of valid immigrant and non-immigrant visas, lawful permanent residents,] and others from the seven listed countries who, absent the EO, would be legally authorized to enter the U.S., were also protected from exclusion.
On Jan. 31, U.S. District Judge Andre Birotte in Los Angeles ruled that the government must permit immigrants from the seven listed nations who have initial preclearance for legal residency to enter the U.S. Birotte ordered U.S. officials to refrain from “removing, detaining or blocking the entry of [anyone] . . . with a valid immigrant visa” arriving from one of the seven countries.
Attorney Julie Ann Goldberg had filed the Los Angeles case on behalf of more than 24 plaintiffs of Yemeni descent, including U.S. citizens. Over 200 people holding immigrant visas who had left Yemen, and are either related to U.S. citizens or lawful permanent residents, were stranded in Djibouti and prevented from flying to the U.S.
Meanwhile, on Feb. 1, a counsel to the president informed government agencies that the EO does not apply to some categories of immigrants. They include lawful permanent residents, Iraqis who worked for the US government in jobs such as interpreters and people with dual nationality when entering the U.S. with a passport from a country other than one of the forbidden seven.
On Feb. 3, U.S. District Judge James Robart in Seattle issued a temporary nationwide restraining order halting the EO’s ban on citizens of the seven countries from entering the US. Judge Robart ruled the EO would be stopped nationwide, effective immediately. (The New York Times called Robart’s ruling “a humbling defeat” for the Trump administration.)
First Amendment’s Establishment Clause
The strongest constitutional argument for overturning the EO is that it violates the Establishment Clause of the First Amendment. The Supreme Court has held “the clearest command of the Establishment Clause is that one religious domination cannot be officially preferred over another.”
The EO “imposes a selective ban on immigration from seven Muslim-majority countries as well as establishes preferential treatment for refugees seeking asylum who are identified with ‘minority religions’ in their country of origin,” ACLU National Legal Director David Cole wrote in Just Security. Cole cited Trump’s statement on Christian Broadcast News that the intent of his EO was to prioritize “Christians” seeking asylum over “Muslims.”
Erwin Chemerinsky, dean of UC Irvine School of Law, observed in the Los Angeles Times, “Although Trump’s order does not expressly exclude Muslims, that is its purpose and effect as it bars entry to individuals from predominantly Muslim countries.”
When Trump signed the EO, Cole noted, he “pledged to ‘keep radical Islamic terrorists out of the U.S.’ Not ‘terrorists’; not ‘radical terrorists.’ But only ‘radical Islamic terrorists.'” Cole concluded that Trump “has violated the Establishments Clause’s ‘clearest command'” as “[T]here is no legitimate reason to favor Christians over all others who are persecuted for their beliefs.”
Fifth Amendment’s Due Process Clause
Procedural due process forbids the government from depriving an individual of life, liberty or property without due process of law. The U.S. government is obligated to hear the asylum claims of noncitizens who arrive at U.S. borders and ports of entry.
The Immigration and Nationality Act provides, “Any alien who is physically present in the US or who arrives in the US . . . irrespective of such alien’s status, may apply for asylum . . .” They must be afforded an opportunity to apply for asylum or other forms of humanitarian protection and be promptly received and processed by U.S. authorities. The Trump administration’s denial of an opportunity to apply for asylum violates procedural due process.
Fourteenth Amendment’s Equal Protection Clause
The Equal Protection Clause prohibits the government from “deny[ing] to any person within its jurisdiction the equal protection of laws.” An executive order that has the “purpose and effect of disapproval of a class recognized and protected by state law” violates the Equal Protection Clause, the Supreme Court held in US v. Windsor.
Muslim immigrants and non-Muslim immigrants from the seven listed countries are two separate classes of people for Equal Protection purposes. Unequal treatment of different groups based on religion, which is a suspect class, are subjected to strict scrutiny and thus there must be a compelling state interest to justify the disparate treatment. None of the 9/11 hijackers came from any of the seven countries. There have been no fatal terrorist attacks on U.S. soil by anyone from those countries. Therefore, there is no compelling state interest for treating the two classes differently. This is particularly true in light of Trump’s statements that his order would prioritize “Christians” seeking asylum over “Muslims.”
As Corey Brettschneider wrote for Politico, the Court drew a clear connection between the protection of religious liberty and the Equal Protection Clause’s prohibition of invidious discrimination in Church of Lukumi Babalu Aye v. City of Hialeah.
The Take Care Clause, Art. II, Sec. 3
Trump’s EO violates the Take Care Clause of the Constitution, according to Jeanne Mirer, president of the International Association of Democratic Lawyers.
“This provision requires the President to ‘take care’ that the laws of the country are faithfully executed,” Mirer wrote on Facebook. “The EO on immigration violates this clause because it requires government officials to violate various laws as well as human rights treaties we have ratified. He is also violating it by appointing people who openly oppose the laws they are being asked to enforce. Impeachable offense,” she added.
Convention Against Torture
Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) establishes the principle of nonrefoulement. It forbids states parties from expelling, returning or extraditing a person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Refugees often flee repressive regimes to escape persecution. Sending people back to a country where they may well suffer torture violates the CAT.
International Covenant on Civil and Political Rights
Article 2 of the International Covenant on Civil and Political Rights (ICCPR) forbids states parties from making distinctions in the provision of civil and political rights based on “race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” By giving fewer rights to Muslims than non-Muslims, Trump is violating the ICCPR.
Immigration and Nationality Act
According to the Immigration and Nationality Act of 1965, no person can 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.” By singling out people from majority-Muslim countries, Trump has violated the Immigration and Nationality Act.
Legal and Political Fallout
Attorneys general from 15 states and the District of Columbia issued a joint statement condemning the EO. One thousand State Department employees likewise opposed the EO.
After federal courts stayed the ban, acting Attorney General Sally Yates ordered the Justice Department not to defend the EO, saying she wasn’t convinced it was lawful. Trump responded by firing Yates, stating she had “betrayed the Department of Justice.”
Ironically, Sen. Jeff Sessions, who will become Attorney General once the Senate confirms his nomination, asked Yates at her confirmation hearing whether she thought the Attorney General had “the responsibility to say no the President if he asks for something that’s improper.”
Sessions’s fingerprints are all over the Muslim ban. The Daily Beast reported that Sessions, White House strategist Steve Bannon and senior policy advisor Steven Miller (a Sessions confidant) drafted the EO.
Hundreds of people were kept in limbo after Trump issued his order. A five-year-old boy was separated from his mother for four hours. Erez Reuveni, an attorney with the Justice Department’s Office of Immigration Litigation, said more than 100,000 visas have been revoked. He could not say, however, how many people who had visas were sent back to their home countries. But, William Cocks from the State Department Bureau of Consular Affairs wrote in an email to NBC News, “Fewer than 60,000 individuals’ visas were provisionally revoked to comply with the Executive Order.”
Although thousands protested the Muslim ban at airports around the country, White House chief of staff Reince Priebus told CBS News that the ban could be extended.
After Judge Robart issued the nationwide stay on Feb. 3, the White House vowed to appeal the ruling. Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In another tweet, Trump wrote, “When a country is no longer able to say who can, and who cannot, come in & out, especially for reasons of safety & security - big trouble!”
We will see whether the Trump administration fulfills its legal duty to act in accordance with the judicial decisions. The rubber will meet the road when federal appellate judges, and probably the Supreme Court, rule on the legal merits of these petitions.
Trump Schooled on Separation of Powers
180 federal employees sign up for 'civil disobedience' class
A large group of federal employees have signed up to participate in a workshop on civil disobedience in the President Trump era.
According to a Washington Post report, 180 federal employees have signed up for a workshop featuring expert advice on workers’ rights and expressing civil disobedience.
Dozens of federal workers have reportedly attended a support group for civil servants that serves as a forum for discussing opposition to the Trump administration.
Some federal employees have already expressed defiance against the Trump administration following a gag order, which has since been lifted, that restricted the Environmental Protection Agency and departments of Agriculture and Health and Human Services from contacting the press or posting about the administration on social media.
After the ban, reports emerged the National Park Services and Badlands National Park Twitter accounts were defying Trump and his gag order with tweets that appeared contrary to the Trump administration's views on climate change and immigration.
180 federal employees sign up for 'civil disobedience' class
‘Good Lord’: Experts say Trump executive order statute could close US to all international travelers
In the week since Pres. Donald Trump issued his controversial executive order on immigration, the provisions restricting US entry by persons affiliated with 7 Muslim countries have received the most intense scrutiny and criticism.
However, according to Politico‘s The Agenda, immigration law specialists are becoming increasingly alarmed over a provision that could have implications for any foreign visitor to the U.S., “from tourists to diplomats.”
“The little-noticed section, appearing immediately after the travel ban, calls for the government to develop a ‘uniform screening standard and procedure’ for all individuals seeking to enter the United States,” said The Agenda’s Danny Vinik. “As written, it appears to require all visitors to go through the same vetting measures, regardless of where they come from or how long they intend to stay.”
Such excessive bureaucratic hurdles will deter recreational visitors to the country, said Stephen Legomsky - the former chief counsel for U.S. Citizenship and Immigration Services under Pres. Barack Obama.
“It would basically shut down tourism,” Legomsky told Politico.
The provision lies in section four of Trump’s executive order and orders federal officials to implement a “uniform screening standard and procedure” as part of the “adjudication process for immigration benefits.”
Vinik explained, “In immigration parlance, ‘immigration benefits’ refers to any permission granted a foreign visitor, from full-scale refugee resettlement to a passport stamp for tourists visiting Disneyland. That wording is about as broad as it can get, lawyers said, and if taken literally would include every single foreigner coming to the United States.”
Hundreds of U.S. diplomats issued statements and memos earlier this week protesting Trump’s executive order, which left travelers stranded and detained all over the world. U.S. Rep. Joaquin Castro said this week that Trump’s immigration order provides grounds for his impeachment in that it deprives people of their rights without due process.
“What they are talking about doing has scared the sh*t out of my members, about the lack of guidance and lack of clarity,” said American Immigration Lawyers Association head Ben Johnson to Politico.
The broadness of the wording virtually ensures that immigration agencies will be unable to fulfill the executive order to the letter, Vinik said, and many immigration attorneys are at a loss as to how to approach challenges to a policy that has no specifics yet.
“Good Lord,” said Texas immigration attorney Kathleen Campbell Walker. “I’ve been doing this for 31 years and I’m trying to figure out what this means.”
Republicans and Democrats told Vinik that the policy will be virtually impossible to enforce with the resources currently available to immigration officials. The Trump administration will either have to make dramatic funding allocations or admit far fewer international travelers to the U.S. per year.
“They just can’t physically do it. It really can’t happen,” said Legomsky. “Other countries would reciprocate some of our constraints on U.S. citizens seeking to travel,” causing bureaucratic messes and potential consequences for travelers all over the world.
“They’ll find out that there aren’t enough resources to go around and the nation still needs the wheels to turn and people to come here. It’ll be a painful process of realization,” said former Immigration and Customs chief counsel under George W. Bush.
It is absolutely unclear what a “uniform screening standard and procedure” would look like. Vinik said that it could potentially include “an in-person interview, detailed documentation, medical histories and biometric testing such as fingerprints, among other information.”
Currently, entrants to the U.S. are handled on risk-based criteria - the greater potential security threat they pose, the more intense screening they receive. Visitors from 38 allied nations don’t need visas at all to enter the country.
“Requiring those travelers to undergo the same vetting procedures as a refugee would create an enormous strain on foreign consulates and U.S. immigration authorities, effectively imposing tight new limits on how many people can visit the U.S. each year,” Vinik said.
Legomsky said he’s not sure if the the administration is incompetent or honestly wants to block all foreign travelers from entering the country.
“It’s hard for me to imagine a screening procedure that is rigorous enough for people who are coming here permanently that, with present resources, we could come even close to using for the 50 million tourists entering our territory,” he said. “Either the language is hopelessly incompetent or they really do mean that there has to be one uniform screening standard that would be unworkable in practice.”
Vinik wrote, “Trump advisors Steve Bannon and Stephen Miller, two of the leading authors of the executive order, have shown interest in not just reducing the number of undocumented immigrants in the U.S. but reducing the flow of legal immigrants as well. The travel ban, controversial as it is, does not go far towards accomplishing that goal, since it is largely restricted to seven countries that send relatively few people to America. But a broader tightening of the vetting process could be far more effective, gumming up the entire system and slowing the flow of all arrivals.”
‘Good Lord’: Experts say Trump executive order statute could close US to all international travelers
Trump Schooled on Separation of Powers
President Trump is getting a crash course on the U.S. Constitution’s separation of powers as federal courts knock down his temporary immigration ban aimed at seven mostly Muslim countries, reports Marjorie Cohn.
On Jan. 27, President Trump made good on his campaign promise to institute a ban on Muslims entering the U.S. Trump’s executive order (“EO”) is titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”
The EO bars nationals from seven Muslim-majority countries from the U.S. for at least 90 days. They include Iraq, Iran, Libya, Syria, Somalia, Yemen and Sudan. The EO also indefinitely prevents Syrian refugees, even those granted visas, from entering the U.S. And it suspends the resettlement of all refugees for 120 days.
None of the 9/11 hijackers came from the seven countries covered by the EO; 15 of the 19 men hailed from Saudi Arabia, which is not on the list. No one from the seven listed countries has mounted a fatal terrorist attack in the United States.
Countries exempted from the EO include Saudi Arabia, Pakistan, Egypt, Turkey, Lebanon and the United Arab Emirates - countries where Trump apparently has business ties.
Trump’s EO violates the Establishment Clause, the Due Process Clause, the Equal Protection Clause, and the Take Care Clause of the Constitution. It also violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as well as the International Covenant on Civil and Political Rights (ICCPR); both are treaties the United States has ratified, making them part of U.S. law under the Constitution’s Supremacy Clause. The EO violates the Immigration and Nationality Act as well.
Six Federal Courts Stay Trump’s EO
In the face of legal challenges, five federal courts have temporarily stayed implementation of parts of the EO, indicating that petitioners have a strong likelihood of prevailing on the merits.
On Jan. 28, U.S. District Judge Ann Donnelly of the Eastern District of New York concluded that the petitioners “have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates Due Process and Equal Protection.” She also found “imminent danger . . . [of] substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the [EO].”
Donnelly thus enjoined respondents Trump, U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS), et al from removing anyone with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program. Holders of valid immigrant and non-immigrant visas, and other individuals from the seven listed countries who are legally authorized to enter the U.S., are also protected from removal by Donnelly’s order.
In spite of Donnelly’s order, CBP agents continued to detain immigrants at airports across the country and send them back, even though some could face persecution in their countries of origin.
On Jan. 28, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia forbade respondents Trump et al from removing the three Yemeni petitioners, who were lawful permanent residents being held at Dulles International Airport, for seven days from the issuance of her order. Brinkema further ordered CBP agents to permit attorneys access to all lawful permanent residents (green card holders) detained pursuant to the EO at Dulles International Airport pursuant.
Nevertheless, CBP agents refused to allow detained lawful permanent residents to consult with lawyers. On Feb. 1, the Commonwealth of Virginia asked a federal judge to force Trump, CBP and other high government officials to show cause why they should not be held in contempt for refusing to obey a lawful court order.
On Jan. 28, U.S. District Judge Thomas Zilly of the Western District of Washington granted a stay of removal and enjoined respondents Trump et al from removing the plaintiffs from the U.S. pending a hearing on Feb. 3.
On Jan. 29, U.S. District Judge Allison Burroughs and U.S. Magistrate Judge Judith Gail Dein of the District of Massachusetts found that Iranian petitioners, a married couple, both of whom are engineering professors at University of Massachusetts-Dartmouth, had a strong likelihood of success in establishing the detention/and or removal of them and others similarly situated would violate Due Process and Equal Protection.
The two judges also concluded petitioners were likely to suffer irreparable harm. They issued a temporary restraining order, preventing respondents Trump et al from detaining or removing for seven days individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program. Holders of valid immigrant and non-immigrant visas, lawful permanent residents,] and others from the seven listed countries who, absent the EO, would be legally authorized to enter the U.S., were also protected from exclusion.
On Jan. 31, U.S. District Judge Andre Birotte in Los Angeles ruled that the government must permit immigrants from the seven listed nations who have initial preclearance for legal residency to enter the U.S. Birotte ordered U.S. officials to refrain from “removing, detaining or blocking the entry of [anyone] . . . with a valid immigrant visa” arriving from one of the seven countries.
Attorney Julie Ann Goldberg had filed the Los Angeles case on behalf of more than 24 plaintiffs of Yemeni descent, including U.S. citizens. Over 200 people holding immigrant visas who had left Yemen, and are either related to U.S. citizens or lawful permanent residents, were stranded in Djibouti and prevented from flying to the U.S.
Meanwhile, on Feb. 1, a counsel to the president informed government agencies that the EO does not apply to some categories of immigrants. They include lawful permanent residents, Iraqis who worked for the US government in jobs such as interpreters and people with dual nationality when entering the U.S. with a passport from a country other than one of the forbidden seven.
On Feb. 3, U.S. District Judge James Robart in Seattle issued a temporary nationwide restraining order halting the EO’s ban on citizens of the seven countries from entering the US. Judge Robart ruled the EO would be stopped nationwide, effective immediately. (The New York Times called Robart’s ruling “a humbling defeat” for the Trump administration.)
First Amendment’s Establishment Clause
The strongest constitutional argument for overturning the EO is that it violates the Establishment Clause of the First Amendment. The Supreme Court has held “the clearest command of the Establishment Clause is that one religious domination cannot be officially preferred over another.”
The EO “imposes a selective ban on immigration from seven Muslim-majority countries as well as establishes preferential treatment for refugees seeking asylum who are identified with ‘minority religions’ in their country of origin,” ACLU National Legal Director David Cole wrote in Just Security. Cole cited Trump’s statement on Christian Broadcast News that the intent of his EO was to prioritize “Christians” seeking asylum over “Muslims.”
Erwin Chemerinsky, dean of UC Irvine School of Law, observed in the Los Angeles Times, “Although Trump’s order does not expressly exclude Muslims, that is its purpose and effect as it bars entry to individuals from predominantly Muslim countries.”
When Trump signed the EO, Cole noted, he “pledged to ‘keep radical Islamic terrorists out of the U.S.’ Not ‘terrorists’; not ‘radical terrorists.’ But only ‘radical Islamic terrorists.'” Cole concluded that Trump “has violated the Establishments Clause’s ‘clearest command'” as “[T]here is no legitimate reason to favor Christians over all others who are persecuted for their beliefs.”
Fifth Amendment’s Due Process Clause
Procedural due process forbids the government from depriving an individual of life, liberty or property without due process of law. The U.S. government is obligated to hear the asylum claims of noncitizens who arrive at U.S. borders and ports of entry.
The Immigration and Nationality Act provides, “Any alien who is physically present in the US or who arrives in the US . . . irrespective of such alien’s status, may apply for asylum . . .” They must be afforded an opportunity to apply for asylum or other forms of humanitarian protection and be promptly received and processed by U.S. authorities. The Trump administration’s denial of an opportunity to apply for asylum violates procedural due process.
Fourteenth Amendment’s Equal Protection Clause
The Equal Protection Clause prohibits the government from “deny[ing] to any person within its jurisdiction the equal protection of laws.” An executive order that has the “purpose and effect of disapproval of a class recognized and protected by state law” violates the Equal Protection Clause, the Supreme Court held in US v. Windsor.
Muslim immigrants and non-Muslim immigrants from the seven listed countries are two separate classes of people for Equal Protection purposes. Unequal treatment of different groups based on religion, which is a suspect class, are subjected to strict scrutiny and thus there must be a compelling state interest to justify the disparate treatment. None of the 9/11 hijackers came from any of the seven countries. There have been no fatal terrorist attacks on U.S. soil by anyone from those countries. Therefore, there is no compelling state interest for treating the two classes differently. This is particularly true in light of Trump’s statements that his order would prioritize “Christians” seeking asylum over “Muslims.”
As Corey Brettschneider wrote for Politico, the Court drew a clear connection between the protection of religious liberty and the Equal Protection Clause’s prohibition of invidious discrimination in Church of Lukumi Babalu Aye v. City of Hialeah.
The Take Care Clause, Art. II, Sec. 3
Trump’s EO violates the Take Care Clause of the Constitution, according to Jeanne Mirer, president of the International Association of Democratic Lawyers.
“This provision requires the President to ‘take care’ that the laws of the country are faithfully executed,” Mirer wrote on Facebook. “The EO on immigration violates this clause because it requires government officials to violate various laws as well as human rights treaties we have ratified. He is also violating it by appointing people who openly oppose the laws they are being asked to enforce. Impeachable offense,” she added.
Convention Against Torture
Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) establishes the principle of nonrefoulement. It forbids states parties from expelling, returning or extraditing a person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Refugees often flee repressive regimes to escape persecution. Sending people back to a country where they may well suffer torture violates the CAT.
International Covenant on Civil and Political Rights
Article 2 of the International Covenant on Civil and Political Rights (ICCPR) forbids states parties from making distinctions in the provision of civil and political rights based on “race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” By giving fewer rights to Muslims than non-Muslims, Trump is violating the ICCPR.
Immigration and Nationality Act
According to the Immigration and Nationality Act of 1965, no person can 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.” By singling out people from majority-Muslim countries, Trump has violated the Immigration and Nationality Act.
Legal and Political Fallout
Attorneys general from 15 states and the District of Columbia issued a joint statement condemning the EO. One thousand State Department employees likewise opposed the EO.
After federal courts stayed the ban, acting Attorney General Sally Yates ordered the Justice Department not to defend the EO, saying she wasn’t convinced it was lawful. Trump responded by firing Yates, stating she had “betrayed the Department of Justice.”
Ironically, Sen. Jeff Sessions, who will become Attorney General once the Senate confirms his nomination, asked Yates at her confirmation hearing whether she thought the Attorney General had “the responsibility to say no the President if he asks for something that’s improper.”
Sessions’s fingerprints are all over the Muslim ban. The Daily Beast reported that Sessions, White House strategist Steve Bannon and senior policy advisor Steven Miller (a Sessions confidant) drafted the EO.
Hundreds of people were kept in limbo after Trump issued his order. A five-year-old boy was separated from his mother for four hours. Erez Reuveni, an attorney with the Justice Department’s Office of Immigration Litigation, said more than 100,000 visas have been revoked. He could not say, however, how many people who had visas were sent back to their home countries. But, William Cocks from the State Department Bureau of Consular Affairs wrote in an email to NBC News, “Fewer than 60,000 individuals’ visas were provisionally revoked to comply with the Executive Order.”
Although thousands protested the Muslim ban at airports around the country, White House chief of staff Reince Priebus told CBS News that the ban could be extended.
After Judge Robart issued the nationwide stay on Feb. 3, the White House vowed to appeal the ruling. Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In another tweet, Trump wrote, “When a country is no longer able to say who can, and who cannot, come in & out, especially for reasons of safety & security - big trouble!”
We will see whether the Trump administration fulfills its legal duty to act in accordance with the judicial decisions. The rubber will meet the road when federal appellate judges, and probably the Supreme Court, rule on the legal merits of these petitions.
Trump Schooled on Separation of Powers
Click to view180 federal employees sign up for 'civil disobedience' class
A large group of federal employees have signed up to participate in a workshop on civil disobedience in the President Trump era.
According to a Washington Post report, 180 federal employees have signed up for a workshop featuring expert advice on workers’ rights and expressing civil disobedience.
Dozens of federal workers have reportedly attended a support group for civil servants that serves as a forum for discussing opposition to the Trump administration.
Some federal employees have already expressed defiance against the Trump administration following a gag order, which has since been lifted, that restricted the Environmental Protection Agency and departments of Agriculture and Health and Human Services from contacting the press or posting about the administration on social media.
After the ban, reports emerged the National Park Services and Badlands National Park Twitter accounts were defying Trump and his gag order with tweets that appeared contrary to the Trump administration's views on climate change and immigration.
180 federal employees sign up for 'civil disobedience' class
‘Good Lord’: Experts say Trump executive order statute could close US to all international travelers
In the week since Pres. Donald Trump issued his controversial executive order on immigration, the provisions restricting US entry by persons affiliated with 7 Muslim countries have received the most intense scrutiny and criticism.
However, according to Politico‘s The Agenda, immigration law specialists are becoming increasingly alarmed over a provision that could have implications for any foreign visitor to the U.S., “from tourists to diplomats.”
“The little-noticed section, appearing immediately after the travel ban, calls for the government to develop a ‘uniform screening standard and procedure’ for all individuals seeking to enter the United States,” said The Agenda’s Danny Vinik. “As written, it appears to require all visitors to go through the same vetting measures, regardless of where they come from or how long they intend to stay.”
Such excessive bureaucratic hurdles will deter recreational visitors to the country, said Stephen Legomsky - the former chief counsel for U.S. Citizenship and Immigration Services under Pres. Barack Obama.
“It would basically shut down tourism,” Legomsky told Politico.
The provision lies in section four of Trump’s executive order and orders federal officials to implement a “uniform screening standard and procedure” as part of the “adjudication process for immigration benefits.”
Vinik explained, “In immigration parlance, ‘immigration benefits’ refers to any permission granted a foreign visitor, from full-scale refugee resettlement to a passport stamp for tourists visiting Disneyland. That wording is about as broad as it can get, lawyers said, and if taken literally would include every single foreigner coming to the United States.”
Hundreds of U.S. diplomats issued statements and memos earlier this week protesting Trump’s executive order, which left travelers stranded and detained all over the world. U.S. Rep. Joaquin Castro said this week that Trump’s immigration order provides grounds for his impeachment in that it deprives people of their rights without due process.
“What they are talking about doing has scared the sh*t out of my members, about the lack of guidance and lack of clarity,” said American Immigration Lawyers Association head Ben Johnson to Politico.
The broadness of the wording virtually ensures that immigration agencies will be unable to fulfill the executive order to the letter, Vinik said, and many immigration attorneys are at a loss as to how to approach challenges to a policy that has no specifics yet.
“Good Lord,” said Texas immigration attorney Kathleen Campbell Walker. “I’ve been doing this for 31 years and I’m trying to figure out what this means.”
Republicans and Democrats told Vinik that the policy will be virtually impossible to enforce with the resources currently available to immigration officials. The Trump administration will either have to make dramatic funding allocations or admit far fewer international travelers to the U.S. per year.
“They just can’t physically do it. It really can’t happen,” said Legomsky. “Other countries would reciprocate some of our constraints on U.S. citizens seeking to travel,” causing bureaucratic messes and potential consequences for travelers all over the world.
“They’ll find out that there aren’t enough resources to go around and the nation still needs the wheels to turn and people to come here. It’ll be a painful process of realization,” said former Immigration and Customs chief counsel under George W. Bush.
It is absolutely unclear what a “uniform screening standard and procedure” would look like. Vinik said that it could potentially include “an in-person interview, detailed documentation, medical histories and biometric testing such as fingerprints, among other information.”
Currently, entrants to the U.S. are handled on risk-based criteria - the greater potential security threat they pose, the more intense screening they receive. Visitors from 38 allied nations don’t need visas at all to enter the country.
“Requiring those travelers to undergo the same vetting procedures as a refugee would create an enormous strain on foreign consulates and U.S. immigration authorities, effectively imposing tight new limits on how many people can visit the U.S. each year,” Vinik said.
Legomsky said he’s not sure if the the administration is incompetent or honestly wants to block all foreign travelers from entering the country.
“It’s hard for me to imagine a screening procedure that is rigorous enough for people who are coming here permanently that, with present resources, we could come even close to using for the 50 million tourists entering our territory,” he said. “Either the language is hopelessly incompetent or they really do mean that there has to be one uniform screening standard that would be unworkable in practice.”
Vinik wrote, “Trump advisors Steve Bannon and Stephen Miller, two of the leading authors of the executive order, have shown interest in not just reducing the number of undocumented immigrants in the U.S. but reducing the flow of legal immigrants as well. The travel ban, controversial as it is, does not go far towards accomplishing that goal, since it is largely restricted to seven countries that send relatively few people to America. But a broader tightening of the vetting process could be far more effective, gumming up the entire system and slowing the flow of all arrivals.”
‘Good Lord’: Experts say Trump executive order statute could close US to all international travelers