Academic journal article Harvard Journal of Law & Public Policy

Trump's Travel Ban: Lawful but Ill-Advised

Academic journal article Harvard Journal of Law & Public Policy

Trump's Travel Ban: Lawful but Ill-Advised

Article excerpt

Waging relentless and barbaric genocide against minority religious groups in Syria and Iraq, (1) ISIS (2) has murdered, (3) raped, (4) and kidnapped (5) Yazidis and Christians, among others. Almost 90% of Iraq's Mandean population has been killed or displaced, and only a fourth of the (1700)-year-old Christian population remains. (6) Citing religious persecution (7) and security concerns presented by terrorist groups, (8) in January 2017 President Trump issued the controversial Executive Order 13,769, "Protecting the Nation From Foreign Terrorist Entry Into the United States" (the "Original Order"). Section Three of the Original Order banned the entry of nationals from Iraq, Iran, Sudan, Libya, Somalia, Syria and Yemen for 90 days. (9) In Section Five, the Original Order indefinitely postponed the admission of Syrian refugees, (10) gave preference to "refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality," (11) and suspended the Refugee Admissions Program for 120 days. (12)

The Original Order sparked debate over whether such provisions were within the statutory and constitutional authority of the President of the United States, and whether they violated the Establishment Clause of the First Amendment. A few days after President Trump signed the Original Order, the States of Washington and Minnesota challenged it in the United States District Court for the Western District of Washington. (13) Judge James Robart ruled in favor of the challengers, and issued a nationwide injunction against enforcement of the Original Order. (14) During the President's subsequent motion to stay in the Ninth Circuit, the parties put forward many of the best arguments for and against the Original Order's legality. (15) Ultimately, however, the Ninth Circuit denied the motion to stay Judge Robart's ruling. (16)

President Trump rescinded and replaced the Original Order in March 2017. (17) Executive Order 13,780 (the "Revised Order") kept the 90-day ban for six of the original countries, but removed Iraq; (18) kept the 120-day suspension of refugees, but removed the indefinite ban on Syrian refugees; (19) specified that the Revised Order is inapplicable to lawful permanent residents, (20) persons with valid visas on the effective date of the Original Order (21) or the Revised Order, (22) or refugees scheduled for travel to the United States before the effective date of the Revised Order; (23) authorized the Secretary of State and Secretary of Homeland Security to jointly make case-by-case exceptions to the refugee suspension (24) and consular officials to make exceptions to the travel restrictions; (25) and eliminated (but defended (26)) the provision giving preference to members of minority religions. (27) In June 2017, the Supreme Court--taking up two new challenges to the Revised Order--ordered a partial stay, holding that the Revised Order could only be enforced against foreign nationals "who can[not] credibly claim a bona fide relationship with a person or entity in the United States." (28)

This Note will explore the contours of the debate over the validity of the Original Order, and argue that the Original Order was lawful, but a poor policy choice. The first part of this Note argues that the Original Order was within the lawful constitutional and statutory authority of the President of the United States and did not violate the Establishment Clause of the First Amendment. The second part of this Note, however, argues that giving preference to individual refugees on the condition that the "religion of the individual is a minority religion in the individual's country of nationality" is a poor policy choice, reflecting an oversimplification of and common misconception of religious persecution. Determining whether a refugee has a suitable country of refuge closer to him than the United States, and prioritizing refugees accordingly, could be a more effective way of stopping religious persecution. …

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