“Uncharted Waters” of Trump Immigration Order


Fordham Law School Professors Jennifer Gordon, Abner S. Greene, and Russell G. Pearce voiced concerns about the legality and constitutionality of President Donald Trump’s controversial executive order on immigration, during an hour-long event on Wednesday afternoon before a packed room of Law School students, faculty, and staff.

One day later, a three-judge panel representing the Ninth Circuit Court of Appeals ruled unanimously to deny the government’s emergency motion for a stay of U.S. District Judge James Robart’s temporary restraining order issued Friday, Feb. 3. The federal appeals court’s ruling, in favor of the states of Washington and Minnesota, allows immigrants from the seven Muslim-majority nations named in Trump’s ban to continue traveling to the United States.

The Ninth Circuit Court of Appeals heard oral arguments on Tuesday from the state of Washington and the federal government, on the matter of Judge Robart’s temporary restraining order. On the same day as the oral arguments, Fordham Law student Fahimeh (Farimah) Kashkooli reunited at JFK Airport with her young daughter, Alma, whose trip to New York from Iran for medical care for a rare congenital disorder was delayed due to the ban.

National security concerns motivated the Jan. 27 executive order, Trump’s administration contended. But, on Thursday, the appeals court ruled that the government had offered no support for its national security argument, and did not prove “that failure to enter a stay would cause irreparable injury.”

Trump’s administration is considering petitioning the Supreme Court to hear the case. If the Supreme Court accepts, it is possible that the justices will split along ideological lines, thus affirming the circuit ruling against the ban, the professors said.

Greene and Pearce questioned on Wednesday whether Trump’s statements offering Christian refugees preferential treatment over Muslims, when combined with his campaign statements endorsing a Muslim ban, potentially violated the Establishment Clause of the First Amendment.

“Why would you single out Christians or Jews for preferred status?” Pearce asked during the event hosted by the Institute On Religion, Law & Lawyer’s Work.

The appeals court judges’ responses to the parties’ oral arguments led Gordon to predict the appeals court would rule in Washington and Minnesota’s favor, the day before that outcome occurred.

Trump’s executive order temporarily banned residents of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from coming into the United States for 90 days and suspended all refugees for 120 days (and Syrian refugees indefinitely). Each of the countries included in the ban feature Muslim populations well in excess of 90 percent, said event moderator and Iran native Zahra Takhshid, an S.J.D. candidate at Fordham Law School.

The president and Congress have controlled immigration policy under the plenary power doctrine since the Chinese Exclusion Case of 1889, and matters of immigration are generally not subject to robust judicial review, Gordon said. However, Washington’s lawyers could challenge the order on the grounds that it harmed the state’s universities and citizens, alleging that the U.S. government sought to restrict the free exercise of religion or establish Christianity as the nation’s official religion.

Still, amendments to the Immigrant Nationality Act in 1965 provide the president discretion to stop people from entering the United States on security grounds to protect the well-being of American citizens. Such actions are rarely taken, and there are statutory interpretations that give priority to antidiscrimination claims, Gordon said.

“President Trump has exercised discretion under this provision much, much, more broadly than any previous president,” Gordon noted. “No previous president, except in one instance, suspended immigration of every national from even a single country.”

Background statements might come into play in this particular case, Greene observed.

“Donald Trump said a lot of things over the last year and a half as a candidate and now as president suggesting he wanted to stop letting Muslims into the country,” Greene said. “The key question is: Is it relevant?”

Greene’s answer: Trump’s statements should be considered relevant in any legal discussion on the underlying purpose of his immigration bans.

Trump’s ability to decide who comes into the country contains the potential for partisan irony, if not hypocrisy. Pearce noted that Republican leaders and some conservative judges had squarely rejected the president’s plenary power on immigration matters during the Obama administration. In United States v. Texas, for example, at the request of Republican state attorneys general, a district judge issued a nationwide injunction, as Judge Robart did, to prevent President Obama’s Deferred Action for Parents of Americans (DAPA) from going into effect. The court of appeals upheld the district court order, and an evenly divided Supreme Court left the court of appeals order in place.

Much has changed since then.

“We’re in a bit of uncharted waters,” Pearce said.


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