Despite the TRO, the Legal Arguments Against Trump’s Immigration Order Are Iffy


Via Jacob Sullum

When Sally Yates, then the acting attorney general, refused to defend President Trump’s executive order suspending the U.S. Refugee Admission Program and blocking the entry of travelers from seven Muslim-majority countries, she said she wasn’t sure the new restrictions were legal, but she didn’t say why. Likewise James Robart, the federal judge in Seattle who last Friday issued a temporary restraining order(TRO) prohibiting enforcement of the travel ban. This reticence reflects a reality that will not please opponents of the order who want it to be illegal as well as unfair and unwise: The president has very broad authority to restrict admission to the United States, while foreign nationals have no right to a visa or refugee status.

Legal permanent residents have stronger claims, but they supposedly are no longer covered by the travel ban. I say “supposedly” because green-card holders from the seven countries Trump picked—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—arguably are still covered by the order, even if they presumptively qualify for waivers. Then again, Nathaniel Gorton, a federal judge in Boston who upheld Trump’s order on the same day Robart issued his TRO, concluded that the language of the travel ban does not apply to legal permanent residents, even though the Trump administration initially said it did.

The complaint that resulted in the TRO, which was filed by the states of Washington and Minnesota, cites 10 causes of action, including equal protection, due process, and religious freedom claims. In approving the TRO, Robart concluded (among other things) that the plaintiffs are “likely to succeed on the merits,” but he gave no indication of which arguments he found most persuasive. Josh Blackman, a professor at South Texas College of Law, highlighted the skimpiness of Robart’s seven-page ruling in an interview with The New York Times. “Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?” Blackman asked. “Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper.”

Gorton’s ruling is three times as long as Robart’s, and it marshals considerable evidence to support the view that the executive order is well within the president’s powers, starting with this provision of the Immigration and Nationality Act (INA): “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

That power, Washington and Minnesota argue, is limited by another provision of the INA that says “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The Trump administration argues that “pausing then resuming visa applications” based on nationality does not qualify as discrimination “in the issuance of” immigration visas. Even if that’s a stretch, this provision does not help refugees, students, tourists, or other travelers using nonimmigrant visas.