March 7, 2017
Stanford scholars analyze Trump’s revised executive order on immigration
President Trump signed a revised executive order Monday limiting immigration from six Muslim-majority countries. Stanford scholars examine the executive order and whether it can withstand judicial scrutiny.
By Milenko Martinovich
President Donald J. Trump signed a revised executive order Monday banning immigrants from six Muslim-majority countries, setting the stage for another battle pitting executive power against judicial authority.
Stanford scholars predict that President Trump’s new immigration order will still meet with legal questions in the courts. (Image credit: stellalevi / Getty Images)
His first executive order on immigration in January was thwarted by a three-judge panel of the U.S. Ninth Circuit Court of Appeals, which unanimously ruled that the initial order offered “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”
Stanford Report asked four Stanford scholars about the president’s actions: Professor Michael W. McConnell, director of the Constitutional Law Center; Terry M. Moe, professor of political science; Shirin Sinnar, associate professor of law; and Allen S. Weiner, director of the Stanford Program in International and Comparative Law.
What are the most significant revisions to this executive order?
Moe: The main purpose of the new order was to modify the original order in ways that would make it acceptable to the courts – notably by exempting holders of green cards and valid visas and by removing the original priority given to “religious minorities.” [During the presidential campaign, Trump emphasized protecting Christians overseas.] There was also what might be called a policy purpose, at least in one respect: Iraq was dropped from the list of targeted countries this time because it is a U.S. ally, its leaders were outraged at having been included, Iraqis who had helped us in the war effort (e.g., interpreters) were being prevented entry to our country, and important figures in the U.S. government (e.g., Secretary of State Rex Tillerson) didn’t want Iraq on the targeted list.
The previous ban was struck down in part over the question of whether it advances national security. Does this version address that issue?
McConnell: The temporary restraining order in the Washington case was allowed to stay in effect because the order extended to visa and green card holders, in violation of procedural due process. That has been corrected. Whether the order advances national security is a question entrusted to the executive by law.
Moe: There is no evidence that this ban would make the nation safer. The U.S. already has extensive vetting procedures. And as the New America Foundation recently reported, all 13 terrorists who engaged in fatal attacks on U.S. soil since 9/11 were either citizens of the United States or permanent residents. None, moreover, were connected to the seven countries targeted in Trump’s original order.
Sinnar: Courts were justifiably skeptical of the idea that legitimate national security considerations, as opposed to religious biases or political motives, drove the first version of the travel ban. The new version of the executive order makes more of an attempt to justify the country-based exclusions on national security grounds, first stating that these countries “present heightened threats” because “each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” It summarizes conditions in these countries, based on a 2016 State Department report, and then attempts to show that some people who have entered the United States have threatened security.
Judges may still question whether this factual record justifies presumptively barring all nationals of these countries (even with the exceptions for permanent residence holders and current visa holders in the order). The executive order does not identify new evidence that would support replacing a system of individual screening with one imposing presumptive group-based exclusions.
The concern that the travel ban affirmatively harms national security continues to apply to the new version. A number of prominent ex-national security officials argued to the Ninth Circuit Court of Appeals last month that discriminatory orders appearing to target Muslims harm U.S. interests by alienating partners, diminishing international trust in the United States and feeding extremist narratives that the United States is at war with Islam. While the new version of the ban has some exceptions and waiver provisions that will partly mitigate its human impact, it remains to be seen whether international public opinion views this ban as any different in message from the first one.
Weiner: The new executive order incorporates “descriptions” of the security risks purportedly posed by nationals of the six countries covered by the EO. The evidentiary value of the descriptions is surely to be debated, but by narrowing the EO’s scope of coverage to those who do not already have a visa, the administration will face a lower bar in demonstrating the existence of a sufficient national security threat. The courts may be reluctant to second-guess the decision of the executive branch about who may be admitted to the United States – as opposed to whether to permit entry of people to whom the United States had already issued visas or refugee travel documents, as was the case with the first executive order.
Will those challenging the revised order have to adjust their legal arguments?
Weiner: Yes. The standing and due process rights of persons who do not already have a visa or refugee admission document are different from those of the persons who brought the challenges to the first executive order. At the same time, those challenging the revised executive order will still be able to focus on the anti-Islamic discriminatory motivations underlying the executive order.
Will the revised order ultimately withstand legal scrutiny?
Sinnar: A key legal question will be whether the challengers can prove that the order was intended to discriminate against Muslims. On the facts, there is good evidence of discriminatory intent. Courts aren’t limited to considering whether the terms of a policy are explicitly discriminatory. They can also look to the historical background of a policy, the sequence of events preceding its adoption, and the statements of drafters. It’s not difficult to draw the connections between the recurrent anti-Muslim rhetoric of candidate Trump, his campaign promise to ban Muslim immigration, the first executive order (which Trump adviser Rudy Guiliani described as an attempt to deliver a legally viable version of the promised ban), and the new executive order prompted by the courts’ intervention.
If there is a point at which the bias charge can no longer be pinned on a revised executive order, we are not there yet. The executive process that produced the ban continues to reflect hostility to Muslims. For example, the executive order still includes provisions that play on anti-Muslim prejudices, such as the requirement that government officials publicize “honor killings” by foreign nationals in the United States – a form of gender-based violence that candidate Trump falsely connected exclusively to Muslims.
If the courts are persuaded on the facts, they will still face questions over the scope of executive power over immigration. A doctrine established by the Supreme Court over a century ago sharply reduces judicial scrutiny over decisions to restrict the entry of foreign nationals. Over the course of the last century, the court has moved away from such views and recognized some constitutional limits on immigration power, in addition to developing the right to equal protection of the law in other contexts. But it hasn’t explicitly overturned the old cases. So courts may now have to decide whether they are finally ready to deem the religious or racial exclusion of immigrants unconstitutional.