The Trump Travel Ban: What’s the Law and Procedure?

09 February 2017

President Trump's recent Executive Order was titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Order”).

In this short note, Oisin Tobin, who leads our San Francisco office, provides an overview of the issues that are in play in the most high profile case that has resulted from the Order: State of Washington v Trump. While there are numerous media reports discussing the litigation, they tend to skim over the important legal details.

So far, this case has led to a temporary restraining order - the equivalent of an Irish Court’s interim injunction - being imposed on the enforcement of certain controversial aspects of the Order. Other aspects of the Order, including those directing that certain studies be carried out and statistics published, remain in force.

Adoption of the Order

On 27 January 2017, President Trump signed the Order, which does three main things: 

(i) indefinitely bar Syrian refugees from entering the United States;  
(ii) impose a 120 day moratorium on the US’s refugee resettlement program; and 
(iii) suspend, for 90 days, the entry into the United States by any individual who is a national of seven named majority-Muslim countries.

Procedural Background

On 30 January 2017, Washington State issued proceedings against President Trump before the US District Court in Seattle - in the US court hierarchy, the “District Court” is broadly equivalent to the Irish High Court. Washington sought a declaration that various portions of the Order were unlawful, along with an injunction preventing the enforcement of the same. Minnesota quickly joined the case as a co-plaintiff.

The States also sought a “temporary restraining order” ("TRO") banning the enforcement of certain provisions of the Order. A TRO is equivalent to an interim injunction in Ireland, and is intended to preserve the status quo pending a full hearing on the application for a preliminary injunction - what we would call an interlocutory injunction.  

A TRO is hard to get. The party seeking a TRO needs to show, among other things, that they are likely to (i) win the case and (ii) suffer irreparable harm if the TRO is not granted.

Some applications for TRO’s are heard ex parte, i.e. with only the applicant present, but the States’ application was on notice to the Federal Government. On 3 February, following a hearing where the Federal Government was represented, the District Court granted the TRO and found that the Order was likely to inflict immediate and irreparable harm on both States and their residents.

The next day, the Federal Government filed an appeal against the granting of the TRO. This appeal is currently before the Ninth Circuit Court of Appeals in San Francisco.  The US, due to its size, has 13 separate Courts of Appeal. The 9th Circuit, based in San Francisco, is the largest and is responsible for much of Western USA.

Oral argument took place on the afternoon on Tuesday, 7 February. The Court has reserved judgment. Commentators expect judgment to be handed down within the week.

The current high profile appeal is all about the TRO; the substantive case, including any further pre-trial injunctions, is still before the Court in Seattle.

What are the Legal Arguments?

The main issues in the case are as follows: 

  • National Security: Whether or not the purported national security purpose underpinning the Order protects it, to some extent at least, from judicial review. This seems to be the main argument of the Federal Government, which is extensively relying on the broad powers enjoyed by the executive to control immigration. 

  • Motives: Whether the Courts can have regard to the executive’s, presumed, motives when reviewing the Order. This is a crucial issue: the States are of the view that the Order is motivated by religious sentiment, and rely on the statements made by President Trump during his election campaign and around the signing of the Order. The Federal Government counters that, on its face, the Order principally targets countries, not religions. 

  • Standing: Whether the States have standing (locus standi) to bring the proceedings, as both their interests and those of their residents are impacted by the Order. The Federal Government argue that the States are not affected by the Order and so are the wrong party to bring the case. The States respond that they have a recognised right to protect their residents and that they are being harmed through loss of taxes and tourist revenue and as a result of adverse impacts on their universities. Note that numerous other “blue”, or Democratic, States have joined the case as an amici curiae to support Washington and Minnesota on this point. 

  • Due Process: Whether the Order violates the due process, i.e. fair process/ natural justice, guarantees of the US Constitution. The States argue that the Order prevents permanent residents and visa holders from entering the US without any hearing/ right to object etc.  Similarly, certain people who live in the US have effectively been deprived of the right to international travel, without any procedure being followed. 

  • Establishment of Religion: Whether the Order – by implicitly favouring one religion over another - violates the First Amendment’s prohibition on the “establishment” of religion. This relates to the strict separation of church and state mandated by US law. The States argue that a significant purpose of the Order is to favour Christian refugees over Muslim refugees. The Governments response is that the Order is religiously neutral on its face. 

  • Equal Protection: Whether the Order violates the equal protection provisions of the Constitution. Essentially, the States argue that the Order displays an intent to discriminate against Muslims, and this is constitutionally impermissible. 

  • Statutory Discrimination: Whether the temporary banning of persons from specific nations is lawful under US immigration law, or whether it violates a provision of the Immigration and Nationality Act that bars discrimination on grounds of nationality. 

In addition, over 100 technology companies have filed an amici curiae brief supporting the States’ position. This brief is written in fairly trenchant terms. It principally makes policy arguments that the Order damages US competitiveness by making it harder for US companies to hire. The technology companies also argue that the Order is arbitrary in its scope and constitutes impermissible discrimination on nationality grounds.

It remains to be seen how the Court of Appeals will rule. Both sides have expressed an intent to appeal an adverse decision to the Supreme Court.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

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