By Maryellen Fullerton, Professor of Law, Brooklyn Law School, Brooklyn, New York
We live in tumultuous times. Since Donald Trump was inaugurated as president of the United States three weeks ago, the political scene in the United States has been roiled by mass demonstrations, boldface headlines, and tweets in the middle of the night. Immigration, linked by Trump to criminals and terrorists, has been a flashpoint.
Five days after the inauguration, Trump signed two immigration-themed executive orders, “Border Security and Immigration Enforcement Improvements” and “Enhancing Public Safety in the Interior of the United States.” The first of these orders authorizes construction of a physical barrier along portions of the southern border of the United States and calls for hiring more Border Patrol agents. The second threatens to withhold federal funding from cities and towns that refuse to cooperate with federal immigration officials and provide sanctuary to unauthorized immigrants. Both Executive Orders contain multiple other provisions, but the vague language and lack of specific details make the likely impact of these orders unclear. The anti-immigrant tone, however, is crystal clear. Public debate about the legality of the orders erupted immediately.
Two days later, on 27 January, Trump released Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry into the United States,” which greatly eclipsed the earlier orders. Signed late on Friday afternoon and directed to go into effect immediately, this order caused turmoil in international air travel, upended thousands of lives, precipitated multiple lawsuits across the United States, and led to a standoff between the executive and judicial branches of the US government. The order cites the terrorist attacks of September 11, 2001 – fifteen years ago – and asserts that “[d]eteriorating conditions in certain countries . . . increase the likelihood that terrorist will use any means possible to enter the United States.” Accordingly, the order suspends for 90 days the entry of any citizens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. In addition, the order suspends all refugee admissions for 120 days. Further, it suspends the admission of all Syrian refugees indefinitely. Moreover, the order states that, when refugee admissions resume, the United States should prioritize refugees fleeing religious persecution who are members of a minority religion in their homeland. In the interim, the order authorizes two Cabinet officials to make case-by-case exceptions to the suspensions in the “national interest,” which it defines to encompass religious minorities fleeing persecution.
Although it did not become public at the time, a top official at the US State Department Bureau of Consular Affairs issued the following order on 27 January: “I hereby provisionally revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.” Without notice to the affected individuals or an opportunity for them to challenge the action, the US government in one stroke cancelled the ability of 60,000 to 100,000 to enter, return to, or lawfully remain in the United States.
Confusion reigned at multiple international airports in the United States on Friday night and Saturday morning as volunteer lawyers and interpreters arrived to offer their services to travelers affected by the ban. Relatives waiting for people scheduled to arrive began to panic, worried that their family members had been denied entry and forced back onto airplanes leaving the United States. Government agents refused to allow attorneys to enter the passenger inspection areas, and rumors spread that Customs and Border Protection (CBP) officers were detaining and deporting new arrivals. In response to attorneys’ requests to speak to government supervisors in order to obtain permission to consult with their clients who had not emerged from the passport inspection zones, government officers said: “Call Mr. Trump.”
By mid-afternoon on Saturday 28 January, attorneys in multiple cities around the United States filed legal proceedings arguing that their clients must be released from the airports because their detention pursuant to Executive Order 13679 was unlawful. Accompanying the writs of habeas corpus, attorneys filed requests for emergency court orders prohibiting US officials from relying on the Executive Order to detain or deport anyone falling within its contours. Federal courts around the country held emergency hearings, and by Saturday evening the courts began to respond.
The federal court in Brooklyn, New York, whose jurisdiction encompasses JFK Airport, issued the first emergency order. It forbade the US government from “in any manner or by any means removing individuals with [approved] refugee applications” and from removing “holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States.” Within 24 hours, federal courts in Boston (Logan Airport), Virginia (Dulles Airport), Seattle, and Los Angeles had issued similar orders, though the details varied. The Virginia court order addressed only the situation at Dulles Airport, while several other courts issued orders that applied to airports across the United States. The Brooklyn federal court prohibited the deportation or removal of noncitizens from the seven listed countries; the Boston federal court limited, in addition, the type of screening government agents could carry out in the arrival zones; the Los Angeles federal court ordered the US government to locate an individual who had been returned to Dubai and to permit him to enter the United States.
All the courts, however, issued emergency orders, known as Temporary Restraining Orders (TRO), which maintain the status quo while the parties develop and present their legal arguments to the court. Consequently, a court order to grant a TRO does not address the legality of the underlying dispute. Nonetheless, courts only grant TROs when the petitioners can show a strong likelihood of success on the merits of their legal argument, as well as the likelihood that individuals will suffer irreparable injury if the status quo is not preserved. Thus, by Sunday 29 January, multiple federal courts had publicly forecast that the Executive Order raised serious constitutional issues. The courts set short time periods – from one to three weeks – in which the parties could prepare and submit fuller arguments concerning the legality of the Executive Order.
Over the weekend of 28–29 January, as news of the Executive Order spread to the public, crowds spontaneously congregated at major airports, while large rallies protesting the Executive Order took place in multiple cities. Networks of volunteer attorneys and interpreters remained at the airports, in light of confusion as to whether US immigration officers were obeying the court orders. By Monday 30 January, it appeared that the officers were admitting air passengers under the pre-Executive order standards, and the spotlight shifted back to the federal courts.
A new lawsuit was filed in federal court in Seattle, Washington on Monday 30 January. In contrast to the earlier cases, which had all been initiated by noncitizens denied entry into the United States, this suit featured the State of Washington as the plaintiff. Washington sought a TRO against Executive Order 13769, arguing that the order injured state residents in “areas of employment, education, business, family relations, and freedom to travel.” Further, the states argued that the Executive Order injured the “operations and missions of [the] public universities and other institutions of higher learning, as well as [state] operations, tax bases, and public funds.” Federal trial court Judge James Robart scheduled a hearing on the TRO for Friday 3 February. After reviewing the briefs filed by the US government and the states of Washington and Minnesota, and presiding over an hour-long oral argument, Judge Robart issued an order from the bench prohibiting the federal government from implementing the disputed portions of the Executive Order. The judge emphasized that his order merely maintained the status quo while the parties prepared and submitted their substantive legal arguments, which the judge would them address promptly. He explicitly stated that his order applied throughout the entire United States. National attention turned from the varying details and expiration dates of the multiple earlier TROs to the validity of Judge Robart’s order.
The next day, Saturday 4 February, the US government filed an emergency motion with the US Court of Appeals for the Ninth Circuit, seeking a stay of the TRO pending an appeal to the Ninth Circuit. The appellate court denied the request for an immediate stay, and scheduled a hearing for Tuesday 7 February, to consider the federal government’s appeal seeking to reverse Judge Robart’s TRO. President Trump, meanwhile, publicly denounced Judge Robart as a “so-called judge” whose ruling “is ridiculous and will be overturned.”
Multiple amicus briefs were filed over the next 48 hours, as well as an astonishing declaration by multiple prior US Secretaries of State, National Security Advisors, and CIA Directors asserting that Executive Order 13769 was unnecessary to protect the national security of the United States and instead was likely to harm US efforts to fight terrorism.
The Ninth Circuit appellate argument took place on 7 February via telephone, with each of the three judges, as well as the lawyers for the State of Washington and the United States, participating from a different state. The Ninth Circuit provided a live audio stream of the hour-long oral argument, and thousands listened. The tone was engaged, but respectful, as the judges peppered questions at attorneys for both sides. At the conclusion of the allotted time, Judge Michelle Friedland announced that the judges would consider the arguments and prepare a ruling quickly. President Trump issued numerous statements, saying that the Executive Order was so clearly lawful that even “a bad high school student would understand this.” It’s “so simple and so beautifully written and so perfectly written.” He criticized federal judges as “so political, and it would be great for our justice system if they would be able to read a statement and do what’s right.” He also tweeted: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”
On Thursday 9 February, the Ninth Circuit unanimously denied the federal government’s appeal. The nationwide TRO remains in effect. As in the earlier judicial decisions, the issue was procedural: the court ruled that the federal government had failed to show that it was likely to prevail on the merits of the legal arguments and failed to show that it would be irreparably harmed by a temporary stay of the Executive Order. The Ninth Circuit opinion, however, did discuss several of the underlying constitutional challenges to the order. Although careful to note that it was not deciding the merits of the arguments, the opinion indicated that the State of Washington had set forth powerful contentions that Executive Order 13769 violates the Due Process Clause of the US Constitution by cancelling valid visas in one fell swoop and by suspending entry of all citizens of the seven proscribed countries. The opinion also noted that there are serious reasons to conclude that the Executive Order runs afoul of constitutional provisions regarding religious discrimination, though it reserved decision on those claims until after the contending parties had an opportunity to address the religion arguments thoroughly.
Contrary to what many expected, the Trump Administration did not file an immediate appeal with the US Supreme Court. Nor did it seek reconsideration of the Ninth Circuit per curiam opinion by a larger panel of Ninth Circuit judges. Back at the trial court level in Seattle, Judge Robart has conferred with the parties to establish a briefing schedule that extends into March. Press reports indicate that the Administration may moot this litigation by promulgating a new, more narrowly tailored Executive Order.
In the meantime, the US refugee program continues to admit overseas refugees, including Syrian refugees, into the United States. Citizens of the seven banned countries with valid visas continue to enter the United States. The airports have, more or less, returned to normal. It’s the quiet before the storm.