Since his inauguration, President Donald Trump has spent his first 100 days in office issuing Executive Orders. Among them, Trump has signed two Executive Orders directing travel bans for non-U.S. citizens of certain Muslim-majority countries: on January 27, 2017, Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States)); and a revised Order on March 6, 2017 Executive Order 13780. The first Executive Order sparked litigation in federal courts around the country, and many suits are continuing forward to challenge the revised Order.
Executive Orders are controversial because it seems to override our system of checks and balances. However, the President has broad powers to issue executive directives under Article II of the U.S. Constitution. In addition, the Immigration and Nationality Act (INA) section 212(f) gives the President broad authority to exclude certain individual aliens or class of aliens if it would be detrimental to the interests of the United States.
President Trump states his intent is to use the power of the Executive Order to limit immigration as quickly as possible with the goal of imminently protecting national security. However, it is hard to believe the President because he made his intensions clear during the campaign about who he wants to allow into the U.S.
Below is a brief timeline of the executive orders and current state of litigation:
On January 25, 2017, President Trump announced two immigration Executive Orders on interior and border enforcement that focused on deportation priorities on immigrants and expanded the number of U.S. Immigration & Customs Enforcement (ICE) and Border Patrol agents. The Order moves forward with the building of a wall among other anti-immigration policies.
On January 27, 2017, the President signed an Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which immediately banned individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for ninety (90) days. Initially, this Order included people with green cards and student visas, as well as refugees. Later, the Department of Homeland Security (DHS) promised to allow green card holders from these seven (7) countries to enter the United States. Among other directives outlined in more detail below, the order prohibited all refugees from entering the U.S. for 120 days, prevented Syrians from entering the U.S. indefinitely, and decreased refugee admissions from 110,000 to 50,000.
The President’s Executive Order sparked protests across the country in opposition to a perceived, and arguably, specific, anti-Muslim and “un-American” travel ban. Within days, lawsuits were filed in the states of Washington and Minnesota in the United States District Court for the Western District of Washington based on the Due Process, Establishment, and Equal Protection Clauses of the Constitution that resulted in a nationwide temporary restraining order against several sections of the First Order. On February 3, 2017, a Seattle Federal Judge issued a temporary nationwide block on President Trump’s travel ban. Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017).
The Department of Justice filed a Notice of Appeal and an Emergency Motion under Circuit Rule 27-3 for administrative stay and motion for stay pending appeal, and requested that the Court enter stay pending appeal of the District Court’s Injunctive Order.
On February 9, 2017, the United States Court of Appeals for the Ninth Circuit, unanimously supported the Seattle Judge’s decision and ruled against reinstating President Trump’s unconstitutional travel ban. Washington v. Trump, 847 F.3d 1151, 1165-66 (9th Cir. 2017). In a per curiam Order, the Ninth Circuit denied the federal government’s emergency motion for a stay, finding that it failed to show a likelihood of success on the merit