Understanding the Legality of Trump’s Refugee Action

The Justice Department argued Monday that President Donald Trump had ample authority to impose a temporary ban on travelers from seven terrorism-compromised countries.

The department filed the written arguments to support its request that an appeals court overrule a federal judge in Seattle who put Trump’s executive order on ice Friday. The states of Washington and Minnesota argue that Trump acted unlawfully.

“The state asks the courts to take the extraordinary step of second-guessing a formal national security judgment made by the president, himself, pursuant to broad grants of national security.”

“The state asks the courts to take the extraordinary step of second-guessing a formal national security judgment made by the president, himself, pursuant to broad grants of national security,” the government’s brief states.

The 9th U.S. Circuit Court of Appeals declined over the weekend to immediately reverse the temporary restraining order granted by U.S. District Judge James Robart, instead instructing both sides to submit written arguments. The appeals court scheduled oral arguments for Tuesday afternoon by phone.

The 9th Circuit has a reputation for liberalism and is the most-reversed appellate court in the country. But Dale Wilcox, executive director and general counsel at the Immigration Reform Law Institute, said Robart’s ruling was so extreme that he believes even the 9th Circuit will not let it stand.

“His order did not contain any analysis whatsoever on these issues,” he said. “That order is so far out of line with current law that I think even the 9th Circuit, though very liberal, would come down to the right decision.”

Most observers believe the case is quickly headed to the Supreme Court, which currently has only eight justices. A 4-4 split would leave the 9th Circuit ruling in place.

“It would be totally shocking if the Supreme Court split 4-4 on these issues,” Wilcox said. “It is so clear the president has the authority to act in this way.”

Josh Blackman, a professor at the South Texas College of Law in Houston, noted that Robart held an hour-long hearing to consider the request by Washington and Minnesota to block the executive order. Attorneys on both sides made arguments, and the judge asked a number of questions.

“The opinion made no references to that,” he said. “He gave no analysis. He didn’t explain what grounds he was ruling on.”

Blackman said the executive order covers many different kinds of people. He said banning legal permanent residents, for instance, is much harder to defend than barring foreigners who want to visit the United States. Foreigners who already are in the United States — on a student visa, for example — may have a greater claim than someone applying for a visa.

“It’s a very difficult question how the Constitution applies to non-U.S. citizens,” Blackman said. “The short answer is, it’s unclear.”

Washington and Minnesota have made a number of constitutional claims, including the First Amendment’s Establishment Clause, which prohibits the government from favoring religion, and the Equal Protection Clause, which prohibits the government from treating two similarly situated groups differently.

But Wilcox said neither conveys an immigration right. There simply is not a right to immigration, he said. If there were, he added, the United States quickly would lose control of its borders and sovereignty.

In any case, Robart did not explain if he accepted either of those arguments, both, or something else, entirely.

“It’s a political judgment,” Wilcox said. “There’s much case law out there to say judges should not be doing that.”

John Yoo, a professor at the University of California at Berkeley who served in the George W. Bush administration, wrote an op-ed for The New York Times Monday criticizing Trump for stretching the limits of executive power. But although he called Trump’s executive order “bad policy,” he wrote, “I believe it falls within the law.”

The administration rests its authority on the 1952 Immigration and Nationality Act, which gives the president for “such period of time as he shall deem necessary” the authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” that he feels would be detrimental to the interests of the United States.

“It doesn’t make sense that the INA gives the president authority to suspend entry of persons or classes of persons if he can’t, in fact, do that,” Wilcox said.

Wilcox said Robart did not simply suspend enforcement of parts of the executive order but blocked its entire implementation.

“He could have, as other judges have done, used a scalpel,” he said. “He didn’t.”

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That suggests that every part of the order is legally problematic, in the judge’s view. One part of the order, for instance, reduced the annual refugee cap from 110,000 to 50,000. But if former President Obama was within his rights to increase the cap, surely his successor could legally lower it.

Blackman said the decision to accept refugees or not rests solely with the executive branch.

“Of all the people involved, refugees have the weakest claim,” he said.

Advocates for tighter immigration enforcement measures, expressed hope the Trump would prevail in the court. David Cross, a spokesman for Oregonians for Immigration Reform, lamented his own governor’s executive order prohibiting state employees from helping to enforce the federal immigration oder. He criticized the judge’s decision to block the executive order.

“It puts us all at risk,” he said. “Those are the very countries where we have special forces fighting terrorist groups. They’re failed states, some of them.”