Executive Order 13769: All the Twists and Turns

Caitlin McLaren - 4B Chemical
Posted on: February 19, 2017

One week after taking office as President of the United States, Donald Trump signed an executive order banning citizens from seven different countries – Iran, Iraq, Libya,  Somalia, Syria, Sudan, and Yemen – from entering the United States for any reason for the next 90 days. Refugees from all countries were banned from entering for 120 days. This order was highly controversial and caused immediate chaos. Protests began spontaneously at airports, as travellers who had set out before the order was signed were turned back or detained. TSA agents, police, and security were overwhelmed and unsure of how to carry out the order, which applied to legal visa holders and permanent residents of the United States. Even minors were detained in some places, such as a five-year-old American citizen who was on a flight from Iran. There are reports by the ACLU of Customs and Border Protection officers attempting to coerce permanent residents into signing I-407 forms, giving up their permanent residency.

During his presidential campaign, Trump openly called for a “total and complete shutdown on Muslims entering the United States”, and most people immediately concluded that this travel ban on travel from these seven Muslim-majority countries was the Muslim ban that he had promised. Thousands of people showed up spontaneously at international airports, many with homemade signs saying such things as “Refugees are welcome here”, decrying the ban as racist. There were also protests in Toronto outside the US Consulate, with many Canadians outraged at initial reports that Canadians with dual citizenship were being turned away at the border (this was later changed after Canadian officials contacted officials from the US). The Consulate closed on the following Monday to avoid any possible trouble, though both that protest, the larger protest the Saturday afterwards, and the airport protests were peaceful. Numerous lawyers offered their services to those affected by the ban for free, beginning work on lawsuits from airport lounges. Prominent in the first lawsuits were two Iraqi men, Hameed Khalid Darweesh (who had acted as an interpreter for the US military) and Haider Sameer Abdulkaleq Alshawi, both of whom were detained in the JFK Airport in New York. Their case was taken up by the American Civil Liberties Union.

Protesters and opponents of the ban pointed out that no terrorist attacks on US soil have been carried out by citizens of the seven countries on the banned list. On the other hand, numerous terrorists including many of the 9/11 attackers, came from other countries such as Saudi Arabia and Egypt. Certain suspiciously-minded people have further pointed out that several countries where known terrorists came from, which were not on the banned list, were countries with Trump business ties. While there is no evidence that this was relevant to the selection of countries where travel was restricted, it does raise eyebrows, especially considering the numerous conflict-of-interest questions that have plagued the Trump administration since his election in November 2016.

The day after the protests, US District Court judge Ann M. Donnelly for the Eastern District of New York ruled that authorities did not have the Constitutional right to remove people who were en route while the order was signed and arrived shortly afterwards. She declared that deporting them “violates their rights to Due Process and Equal Protection”. The White House denied that this did not undercut the executive order.

The next day, a federal judge in Massachusetts ruled in a lawsuit on behalf of two permanent resident university professors that lawful visa and green card holders could not be blocked. Judge Allison Burroughs, along with US Magistrate Judge Judith Dein, issued a seven-day stay on the executive order. Homeland Security Secretary John F. Kelly issued a waiver for permanent residents, against the reported objections of controversial White House chief strategist Stephen K. Bannon. Bannon later denied having this dispute. Meanwhile, prominent people criticized the order, including religious leaders of all sects and politicians, including former president Barack Obama. Washington’s Attorney General then sued the administration in federal court, followed shortly by New York, Massachusetts and Virginia. The White House continued to insist that the ban was in the interests of national security, and denied that the ban was directed at Muslims. However, this was belied by former New York mayor and vocal Trump supporter Rudy Giuliani, who stated on live television in an appearance on Fox News that Trump had consulted him on how to fulfill his campaign promise of a Muslim Ban legally.

On January 30, acting Attorney General Sally Yates, the incumbent Obama appointee who was still in the position of Attorney General awaiting the confirmation of Trump nominee Jeff Sessions, refused to defend the Trump ban. Yates wrote that “At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful”. She was fired by Trump in short order. The Trump administration continued to defend the travel ban, although the restrictions on legal American permanent residents were relaxed. Policy director Stephen Miller accused Yates of refusing to defend the ban for political reasons.

On February 3, US District Court Judge Nathaniel Gordon declined to renew the Massachusetts stay on the travel ban. However, on the same day, federal judge James Robart of the District Court for the Western District of Washington blocked the ban nationwide. A furious Trump blasted him as a “so-called judge”, complaining that blocking the ban would allow dangerous people to enter the country. This statement was widely criticized, especially since Judge Robart was a Republican Bush appointee who would have no political reason to oppose Trump.

Shortly afterwards, the Trump administration appealed the stay on the travel ban, but after hearing legal arguments, a three-judge panel on the Ninth Circuit Court of Appeals ruled unanimously not to repeal the block of the travel ban. Judges Michelle T. Friedland, William C. Canby Jr, and Richard R. Clifton declared that the ban was not in the public interest and that the President’s claim to such vast and “unreviewable” executive powers “runs contrary to the fundamental structure of our constitutional democracy.” In a much-mocked tweet, Trump wrote “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”, threatening to bring the case to the Supreme Court, which currently has an empty seat left by the late Justice Antonin Scalia. Former candidate Hillary Clinton tweeted “3-0” in response. Trump’s own nominee for the Supreme Court, Judge Neil Gorsuch, expressed concern over Trump’s antagonistic statements towards the judiciary, with Sen Richard Blumenthal reporting that Gorsuch called Trump’s “so-called judge” tweet “disheartening and demoralizing”.

Eventually, the Trump administration decided not to pursue the court cases any further. Instead, according to Homeland Security Secretary John Kelly there is a newer, “more streamlined version” of this ban in the works. Although there are no details yet, Kelly indicated that green card and visa holders would likely not be banned; it was the extension of the ban to these people that was the basis of many of the numerous lawsuits contesting the ban.

The future of travel to the US is uncertain; perhaps the administration has learned its lesson regarding the limits on its legal power and the necessity of drafting legal documents carefully, but given President Trump and his staff’s controversial comments regarding the Judicial Branch, that is doubtful. However, the systems in place to check presidential power worked this time, and the American people voiced their disapproval loudly. Hopefully, if more injustices are to come, the same saner forces will prevail.