Refugee and Immigration Executive Order is Unconstitutional and Antithetical to a Fair and Inclusive Society

Stephen Menendian

Assistant Director and Director of Research

Friday, February 3, 2017

On Friday, January 27, President Trump issued an extraordinary executive order (#13769) under the title “Protecting the Nation from Terrorist Entry into the United States.” The scope and complexity of the order generated confusion among those charged with implementing it as well as the press and legal observers. In general, however, the order prohibited entry into the United States of both immigrants and lawful non-citizen residents (green card holders) from seven predominantly Muslim countries and suspended  the US Refugee Admissions Program, of which Syrian refugees had been admitted under the previous administration. There were various exceptions provided, including a provision that would allow the Secretary of Homeland Security to prioritize refugee applications of religious minorities in the targeted countries.  

Within days, a spate of challenges were brought across the nation. Over the next few weeks, federal judges in Brooklyn, Boston, Seattle and other cities issued stays, injunctions, and other forms of immediate relief. The Ninth Circuit Court of Appeals affirmed a nationwide stay on February 9. Rather than appeal that decision, the Trump administration issued a new executive order (#13780) on March 6 under the same header that superseded the previous order. This new order omitted the exception for religious minorities, clarified that lawful visa holders from the named countries would be permitted to enter the country, and removed Iraq from the list of prohibited countries, among other changes. Clearly unhappy with the changes, ostensibly designed to survive a Supreme Court challenge, the President described this second order as a “watered down, politically correct version.”  

Once again, challenges were brought across the nation, and federal judges issued stays and other preliminary relief. Both the Fourth and Ninth Circuit Court of Appeals, in two separate cases, International Refugee Assistance Project v. Trump and Hawaii v. Trump, affirmed various forms of injunctive relief. Consequently, the Trump administration appealed these cases to the United States Supreme Court. On June 26, one of the final days of the Supreme Court’s term, the Court issued an order that lifted the stays issued by the lower court, but with some exceptions, including those applied to individuals by the lower courts thus far or individuals with a “credible claim of a bona fide relationship with a person or entity in the United States.” Furthermore, the Supreme Court granted the petition for a full review this fall. The Court has since postponed oral arguments for this case in light of a new order from the Trump Administration.

The Haas Institute is committed to promoting a fair and inclusive society. As we observed in a report issued late last year, one measure of a nation’s “degree of inclusiveness” is that nation’s immigration or asylum policies. We explained that “[t]hese policies are reflective of the values and perspectives of the society vis-à-vis marginalized group[s], and how welcoming or tolerant the dominant group is of outgroups.” In particular, nativist and xenophobic strains of opinion are sometimes embodied in immigration and refugee policies. Noting our nation’s poor history of exclusionary immigration policy, from the Chinese Exclusion Acts to the Immigration and Naturalization Act of 1790, which restricted naturalization to “free white persons,” the United States has made tremendous progress in establishing non-discriminatory immigration and refugee policies.

Unfortunately, this new executive order is reminiscent of the United States’ legacy of racially and ethnically exclusionary immigration policies. As a candidate for President, Donald Trump called for a “Muslim ban,” and many regarded his orders as effectuating that intent. Although facially neutral, the orders issued by President Trump target Muslims intentionally and through its natural operation. Statements made by President Trump during the Presidential campaign regarding his plans to implement such a policy, as well as statements by his surrogates, reveal a clear intent to target immigrants and refugees on the basis of religion. The provision in the original order providing exception for “religious minorities” in predominantly Muslim countries most obviously reveals this intent, by providing Christian and other religious minorities residing in those countries special treatment. Although the orders did not apply to all predominantly Muslim countries, the context in which this policy arose and contemporaneous statements regarding it support the finding that the intent of the policy is to target a particular group on the basis of their religion.  

In my view, one of the stronger grounds for challenging the first executive order was the exception carved for religious minorities. Such an exception would require all applications to be classified according to their religion, a government action that is presumptively unconstitutional and inconsistent with equal protection principles. Even without that exception, there are strong grounds to believe that the second orders violate the Establishment Clause of the Constitution by expressing a religious preference, Muslim animus, and exceeds the President’s statutory authority.  

The equal protection clause of the 14th Amendment to the United States Constitution guarantees all persons the “equal protection of laws.” Notably, this provision, unlike the Privileges and Immunities Clause of that same section, applies to all “persons,” not simply citizens. Therefore, individuals within the jurisdiction of the United States who are refused admissions to the United States under this order are being denied equal protection of laws in contravention of the United States Constitution. Nation-states have the authority to develop procedures and rules for whom they decide to admit into their borders, but treating members of a group differently because of their identity or beliefs is antithetical to our constitution and our values.  

The United States is a signatory to the Geneva Convention and Protocol Relating to the Status of Refugees, which establish the rights of refugees under international law. There is a critical distinction between immigrants, lawfully resident aliens (green card holders), and refugees. A refugee is a person who is unable or unwilling to return to her country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Last summer, more than two dozen Republican governors expressed resistance to President Obama’s plan to accept tens of thousands of refugees as a consequence of a civil war that has caused about 4.9 million Syrians to flee their homes. Shutting the door to refugees fleeing conflict is not simply antithetical to our core values, but also anti-humanitarian.  

Following World War II, the US admitted 250,000 Europeans who had been displaced during the war. Congress then quickly passed legislation allowing for an additional 400,000 people. Americans witnessed immense suffering during the war and responded collectively by choosing to provide a safe haven to people whose lives were at risk because of their religious beliefs, ethnicity, or because they happened to live in the middle of a war zone. This legislation cemented the US’s commitment to providing protection to refugees. Since then, our country has played a vital leadership role in encouraging the international community to provide additional protections. This policy represents not only a step back from moral leadership, but a collapse of humanitarian decency.  

To many observers, President Trump’s orders are most analogous to the infamous internment of Japanese Americans during World War II which was also a product of an executive order, and infamously and shamefully upheld by the Supreme Court in the notorious Korematsu decision in 1944. This decision upheld the internment more than 100,000 Japanese Americans, most of whom were United States citizens. Just as fears of Muslim “terrorism” lay behind Trump’s executive orders, so did racist fears of Japanese enemy aliens underlie the issuance of the internment order. The Korematsu decision gave broad deference to the executive branch to take action against disfavored minorities. As it considers this case, I am hopeful that the Supreme Court will be mindful of history’s judgment, and not make the same mistake.