Comparing and Contrasting the Legal Challenges to President Trump’s Travel Ban

COMPARING AND CONTRASTING THE LEGAL CHALLENGES TO PRESIDENT TRUMP’S TRAVEL BAN

By: Richard Canada, Volume 101 Staff Member

In the whirlwind first month of Donald Trump’s tenure as President, perhaps no issue has been as controversial or received as much attention as the Executive Order banning travel to the United States from a group of seven Muslim-majority countries.[1] Signed on January 27, 2017, the Executive Order is entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” and prevents all visa-holders and immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for 90 days.[2] In addition, the Order suspends the entry of all refugees for 120 days, and Syrian refugees indefinitely.[3]

In the short time since its enactment, the Executive Order has prompted a multitude of legal challenges.[4] Collectively, these plaintiffs have brought several lawsuits against President Trump’s immigration ban, and offer distinct legal arguments based on their standing and the injuries they claim to have suffered. Comparing the complaints brought by the uniquely-situated plaintiffs in these cases indicates the vast reach of the Executive Order, and provides a glimpse of the varied entities joining in opposition to it.

I. LEGAL CHALLENGES TO THE EXECUTIVE ORDER

The challenges to the Executive Order have thus far come from two distinct types of plaintiff: individuals who claim that their rights to due process have been violated, and States such as Washington and Minnesota that are challenging the constitutionality of the law more broadly. Each will be examined in turn.

A. Individuals

As soon as it went into effect, the Order caused mass detentions at airports across America, with Customs and Border Patrol officials denying entry to as many as 109 people arriving in the country.[5] One such individual was Hameed Darweesh, an Iraqi national granted an immigrant visa to the United States on behalf of his work for the U.S. government in Iraq.[6] Darweesh was detained by officials after landing in New York’s JFK airport, but was granted his release hours later thanks to the efforts of the American Civil Liberties Union on his behalf.[7] Although the circumstances of his ordeal are typical of many affected by the Executive Order, Darweesh’s story might be the most well-known because it prompted the stay granted by U.S. District Judge Ann Donnelly.[8]

The American Civil Liberties Union, the Council on American-Islamic Relations, and other non-profit groups and associations reacted quickly to the ban’s effect on individuals traveling to the United States.[9] Aside from Darweesh’s case in New York, the attorneys for these organizations are also currently representing individual plaintiffs in the states of Virginia, Massachusetts, and California.[10] The primary claims they have filed for their clients are petitions for habeas corpus and declaratory and injunctive relief.[11] The ACLU filed this complaint in the District Court for the Eastern District of New York on behalf of Hameed Darweesh and those similarly situated.[12] The complaint alleges that despite undergoing standard procedures of administrative processing and security checks, the Petitioners were detained and being held indefinitely for no reason other than President Trump’s Executive Order.[13] As a result, the Petitioners claim that their right to due process under the Fifth Amendment had been violated, and they were denied their right to apply for asylum and their right to withholding/Convention Against Torture protection.[14]

The individuals’ due process arguments are based in rights afforded to them by statute. The Immigration and Nationality Act provides that “[a]ny alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum in accordance with this section.”[15] Furthermore, the United Nations Convention Against Torture (“CAT”) prevents the government from returning an alien to a country where they might be subjected to torture or persecution.[16] Because these rights were granted to the individual by the statutory authority of the United States, the individuals are considered to have an interest in maintaining the benefits of these rights.[17] Consequently, under the Fifth Amendment, the individuals’ statutory rights to apply for asylum and be withheld from return to persecution cannot be taken from them by the government without affording due process.

In response to the legal arguments in the complaint, District Judge Ann Donnelly granted an emergency stay on the enforcement of the immigration ban. Her order temporarily blocked the deportation of all people stranded in U.S. airports, pending the outcome of the legal challenges to the Executive Order.[18] Judge Donnelly’s order held that the petitioners had a “strong likelihood of success” in their underlying challenge, and thus they should not be subject to deportation and forced to endure the accompanying hardship and suffering before their case was decided.[19]

B. States

In addition to these individuals challenging the President’s Executive Order, several states have expressed their concern over the broad reach of the restriction and the harms they fear it will cause.[20] Washington State became the first in the country to take legal action against the Trump administration, filing a complaint in the United States District Court for the Western District of Washington.[21] Unlike the personal habeas corpus and due process claims of the individual plaintiffs, Washington’s broader action is to protect the state “against illegal actions of the President and the federal government.”[22] The complaint alleges that President Trump’s Executive Order separates Washington families, damages Washington’s economy, hurts Washington-based companies, and undermines Washington’s sovereign interest in remaining a welcome place for immigrants.[23]

Some of the biggest Washington-based companies mentioned in the complaint publicly announced their support for the state’s lawsuit.[24] Microsoft has been working with the state attorney general’s office to provide information about the Executive Order’s impact on their business, while Amazon and Expedia have filed sworn statements in the lawsuit that address their concerns.[25] As Expedia’s executive vice president and general counsel wrote in his declaration, “Expedia believes that the executive order jeopardizes its corporate mission and could have a detrimental impact on its business and its employees, as well as the broader U.S. and global travel and tourism industry.”[26] Echoing these sentiments, Amazon’s senior manager of mobility and immigration Ayesha Blackwell-Hawkins wrote “The Executive Order . . . immediately—and negatively—impacted employees, dependents of employees, and candidates for employment with Amazon.”[27]

In addition to protecting their interests, the State’s complaint addresses the many students and teachers at Washington’s universities who are affected by the ban and the harm it causes them.[28] The University of Washington and Washington State University are the State’s two largest public research universities, and together they enroll more than 230 students from the seven nations identified in the Executive Order.[29] The State’s complaint raises concerns that these students will be harmed by being prevented from visiting their families, by being prevented from traveling to and from Washington State by air, and by being indefinitely detained by U.S. Customs and Border Patrol officials.[30]

Although Washington State’s compliant differs from those brought by the individuals such as Darweesh in all these ways, there is also a key similarity. As in the Darweesh complaint, Washington State’s allegations include the same due process arguments on behalf of its citizens.[31] However, this complaint attacks the Executive Order on a more comprehensive constitutional basis as well, invoking First Amendment equal protection and establishment clause violations.[32] These classic issues of constitutional law have been addressed at length in other writings, including Professor Stephen Meili’s blog post on this forum, and will not be reiterated here.[33]

II. FORTHCOMING AMENDED EXECUTIVE ORDER

It is worth noting that at the time of this writing, an amended Executive Order is expected to come from the White House any day.[34] This development naturally raises the question, what will become of the currently pending lawsuits against the President and his administration, when the Order at the basis of the suit becomes preempted by an updated version? Will the plaintiffs’ current lawsuits need to be refiled, or can they continue—substituting the new Order for the old?

The answer to these questions will depend heavily on the nature of the changes to the updated version of the Order, and how the administration rewrites it to address the challenges and early defeats suffered by the previous version. When similar scenarios have arisen in the field of administrative law, courts have held that “the plaintiff’s challenges to specific provisions of the defendant’s regulations had been rendered moot by the defendant’s revision of the challenged regulations.”[35] It is certainly possible that the revised Executive Order will similarly render moot the plaintiffs’ challenges in the cases discussed above, and new lawsuits will need to be filed against the controversial provisions of the new Order.

III. CONCLUSION

In summary, the distinct sources of legal challenges to President Trump’s Executive Order on immigration offer diverse arguments based on the unique positions of the plaintiffs bringing the claims. For instance, although both the individual immigrants’ complaints and the States’ complaints raise Fifth Amendment due process concerns, they each offer distinct and non-overlapping claims as well. The physical detentions of the individual immigrants such as Hameed Darweesh provided his attorneys with an opportunity to include a habeas corpus petition; in contrast, the broader sovereign interest of the States afforded them the opportunity to challenge the constitutionality of the Executive Order on First Amendment grounds. In both types of cases, the depth of animosity towards the President’s action is apparent, and the diversity of the challenges brought against him is remarkable. Finally, a new version of the Executive Order will be signed very soon, likely prompting a new wave of legal challenges and causing interesting procedural maneuvering in the cases already in the courts.

  1. Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017).
  2. Id., § 3(c).
  3. Id., § 5(a).
  4. See, e.g., Alexander Burns, Legal Challenges Mount Against Trump’s Travel Ban, N.Y. Times (Jan. 30, 2017), https://www.nytimes.com/2017/01/30/us/legal-challenges-mount-against-trumps-travel-ban.html.
  5. See, e.g., Tears and Detention for US Visitors as Trump Travel Ban Hits, Fox News (Jan. 29, 2017), http://www.foxnews.com/us/2017/01/29/tears-and-detention-for-us-visitors-as-trump-travel-ban-hits.html.
  6. See Joanna Walters, Trump’s Travel Ban: Stories of Those Who Were Detained this Weekend, The Guardian (Jan. 31, 2017), https://www.theguardian.com/us-news/2017/jan/31/people-detained-airports-trump-travel-ban.
  7. See Darweesh v. Trump, ACLU (Feb. 17, 2017), https://www.aclu.org/cases/darweesh-v-trump.
  8. See, e.g., Arianna de Vogue, et al, Judges Temporarily Block Part of Trump’s Immigration Order, WH Stands by It, CNN (Jan. 29, 2017), http://www.cnn.com/2017/01/28/politics/2-iraqis-file-lawsuit-after-being-detained-in-ny-due-to-travel-ban.
  9. See Darweesh v. Trump, supra note 7.
  10. See Mohammed v. United States, No. 2:17-cv-00786 (C.D. Cal. Jan. 31, 2017); Louhghalam v. Trump, No. 17-cv-10154 (D.Mass. Jan. 28, 2017); Darweesh v. Trump, No. 1:17-CV-00480 (E.D.N.Y. Jan. 28, 2017); Aziz v. Trump, No. 1:17-cv-00116 (E.D. Va. Jan. 28, 2017).
  11. Complaint, Louhghalam v. Trump (D.Mass. Jan. 28, 2017); Complaint, Darweesh v. Trump (E.D.N.Y. Jan. 28, 2017); Complaint, Aziz v. Trump (E.D. Va. Jan. 28, 2017).
  12. Complaint, Darweesh v. Trump (E.D.N.Y. Jan. 28, 2017).
  13. Id. at 2.
  14. Id. at 14–15.
  15. 8 U.S.C. § 1158(a)(1).
  16. Pub. L. 105–277, div. G, subdiv. B, title XXII, § 2242, 112 Stat. 2681–822 (1998) (codified as Note to 8 U.S.C. § 1231).
  17. Cf. Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (holding that “benefits are a matter of statutory entitlement for those qualified to receive them.”).
  18. See de Vogue, supra note 8.
  19. Id.
  20. See Joanna Walters, Four States Sue Trump Administration Over “un-American” Travel Ban, The Guardian (Feb. 1, 2017), https://www.theguardian.com/us-news/2017/jan/31/trump-travel-ban-state-lawsuits.
  21. Complaint, State of Washington v. Trump, No. 2:17-cv-00141 (W.D.Wash. Jan. 30, 2017).
  22. Id.
  23. Id. at 1–2.
  24. Amazon and Expedia Join Lawsuit to Stop Trump’s Immigration Ban, Fortune (Jan. 30, 2017), http://fortune.com/2017/01/30/trump-immigration-ban-amazon-expedia.
  25. Id.; Chris Isidore, Amazon, Expedia Back Lawsuit Opposing Trump Travel Ban, CNN Money (Jan. 31, 2017), http://money.cnn.com/2017/01/31/news/economy/trump-travel-ban-amazon-expedia.
  26. Declaration of Robert Dzielak at 3, State of Washington v. Trump, No. 2:17-cv-00141 (W.D.Wash. Jan. 30, 2017).
  27. Declaration of Ayesha Blackwell-Hawkins, Esq. at 2, State of Washington v. Trump, No. 2:17-cv-00141 (W.D.Wash. Jan. 30, 2017).
  28. Complaint at 4, State of Washington v. Trump, No. 2:17-cv-00141 (W.D.Wash. Jan. 30, 2017).
  29. Id.
  30. Id. at 4–5.
  31. Id. at 9–10.
  32. Id. at 8–9.
  33. See, e.g., Stephen Meili, Legal Analysis of Trump Executive Order on Refugees, Minn. L. Rev. De Novo (Feb. 27, 2017), http://www.minnesotalawreview.org/2017/02/trump-executive-order.
  34. See, e.g., Justin Fishel, New Trump Order on Travel and Immigration Expected Wednesday, ABC News (Feb. 28, 2017), http://abcnews.go.com/Politics/trump-order-travel-immigration-expected-wednesday/story?id=45814211.
  35. Worth v. Jackson, 483 F.Supp.2d 1, 5 (D.C. Cir. 2004); see also Akiachak Native Community v. U.S. Dept. of Interior, 827 F.3d 100 (D.C. Cir. 2016); National Min. Ass’n v. U.S. Dept. of Interior, 251 F.3d 1007 (D.C. Cir. 2001).
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