President Donald Trump’s sensational executive order two months ago, temporarily banning the entry of refugees and immigrants from seven Muslim-majority countries into the U.S., remains un-implemented. A string of lawsuits against the order has kept it frozen.
According to its opponents, the travel ban violates the First Amendment’s freedom of religion and the Fifth Amendment’s right to due process. Within a couple of days of the order on January 27, a federal judge in New York granted an emergency stay to citizens from the black-listed countries and a Washington judge issued a stay on detentions and deportment.
A revised executive order, issued on March 6, removed Iraq from the black list, exempted current visa and green card holders/permanent residents and barred the entry of Syrian refugees into the U.S. for 120 days rather than indefinitely.
The new order was designed to withstand legal challenges. However, even that remains blocked after two federal judges ruled against it. Lawyers for the American Civil Liberties Union said Trump’s statements on the campaign trail, and interviews given by advisers after the order clearly indicated that it was an attempt to block Muslims from entering the country.
Federal judges in Hawaii and Maryland, in their restraining orders, echoed the same concerns. Hawaii Judge Derrick Watson’s order was scathing. Describing the “evidence supporting the Government’s security motivations” as “questionable”, the judge said the ban had done “constitutional injuries and harms.”
Watson concluded that while the travel ban did not mention Islam by name, “a reasonable, objective observer… would conclude that the executive order was issued with a purpose to disfavour a particular religion”. Maryland Judge Theodore D. Chuang underlined similar issues, ruling that the purpose of the ban was to discriminate against Muslims.
The administration would have to get the two rulings overturned to implement the travel ban order.
Critics say that the slow pace at which things have moved could undermine the urgency and the security rationale cited for the ban order.
The U.S. Court of Appeals for the 4th circuit, of which Maryland is a part, has scheduled the next hearing on May 8. Hawaii falls under the 9th Circuit and the Justice Department is likely to appeal against Watson’s order only after the Maryland case is heard. A three-judge panel in the 9th Circuit already rejected the ban order.
Eventually, the case will wind up in the U.S. Supreme Court where there is a 4-to-4 split along ideological lines among the current eight judges. Neil Gorsuch, Trump’s nominee to fill the ninth seat left vacant by the death of a judge, is expected to tip the scales in favour of the ban. The Supreme Court has historically deferred to Congress and the White House on immigration enforcement.
During the very first week in office, Trump shocked the world with his executive order that affected refugees, immigrants, students and permanent residents.
The ban was prompted by concerns about national security and the “extreme vetting” Trump promised during the campaign.
Homeland Security officials did not seem to have much guidance on how to implement the ban. Chaos and confusion followed: Some travellers were in the air when the ban was ordered, some were detained and others sent back.
There were protests outside the White House and at airports across the country.
Some foreign leaders, including German Chancellor Angela Merkel and UK Prime Minister Theresa May, slammed the ban. Canadian Prime Minister Justin Trudeau went a step further and tweeted that refugees were welcome in Canada.