Trump s Travel Ban and the Limits of the US Constitution. Jill E. Family

Trump s Travel Ban and the Limits of the US Constitution Jill E. Family I. Introduction... 1 II. The Travel Ban... 2 A. Travel Ban, 1.0 and 2.0... 2 B. Travel Ban, 3.0... 9 III. The Travel Ban and the Limits of the US Constitution... 10 IV. Conclusion... 14 I. Introduction As one of his first actions as president, President Trump chose to ban nationals of seven Muslim-majority countries from entering the United States. The announcement and implementation of this Travel Ban was chaotic, fast-paced, and out of the ordinary. The first version of the Travel Ban quickly was replaced with a second version in an attempt to ameliorate the legal and policy weaknesses of the first version. The second version still was deeply flawed and spawned much litigation. Through a third version, the Trump Administration has tried to create a ban that corrects some of the legal inadequacies of the first two versions, but is still tainted by those earlier versions. 1 This article will describe the announcement and implementation of the Travel Ban, including all three versions. From there, it will explain how the Travel Ban reveals limits to the protections of the United States Constitution in immigration law. The Nineteenth Century plenary power doctrine gives the political branches of the US government virtually unrestricted power when it comes to some aspects of immigration law. The Travel Ban directly implicates that outdated interpretation of constitutional immigration law. The Travel Ban is the real life manifestation of concerns about plenary power. The Travel Ban exposes a severe deficiency in US Commonwealth Professor of Law and Government and Director, Law and Government Institute, Widener University Commonwealth Law School. Thank you to Juan Ignacio Ugartemendia, Pablo González Saquero and the Universidad del País Vasco for making my participation in the 2017 Cursos de Verano possible. 1 This article was finalized in mid-october 2017. 1

immigration law that is incompatible with American values and must be fixed. II. The Travel Ban A. Travel Ban, 1.0 and 2.0 One week after his inauguration, on January 27, 2017, President Trump issued an executive order creating the Travel Ban. 2 This first version of the Travel Ban (Travel Ban One) immediately suspended entry into the United States for ninety days by nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. 3 Travel Ban One also suspended the admission of all refugees into the United States for 120 days. 4 For Syrian refugees, the ban was permanent. 5 When the refugee program would resume (for nationals of all countries except Syria), Travel Ban One directed the government to prioritize refugees who are members of a religious minority in their country of nationality. 6 When resumed, the number of refugees permitted entry into the United States would drop from 100,000 to 50,000. 7 As justification for the policy choices that structure the ban, Travel Ban One invoked the terrorist attacks of September 11, 2001. The document contains the statement that [n]umerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001. 8 Travel Ban One envisioned that the suspensions would reduce investigative burdens on relevant agencies and allow those agencies to undertake a holistic review of the visa issuance process and the refugee resettlement process. 9 As justification for the president s power to institute such a ban, Travel Ban One invokes 10 a federal statute, 8 U.S.C. 1182(f), which states in relevant part: 2 Executive Order 13769, 82 Fed. Reg. 8977 (January 27, 2017), available at https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-thenation-from-foreign-terrorist-entry-into-the-united-states. 3 Id. at Sec. 3(c). 4 Id. at Sec. 5(a). 5 Id. at Sec. 5(c). 6 Id. at Sec. 5(b). 7 Id. at Sec. 5(d). 8 Id. at Sec. 1. 9 Id. at Sec. 3(c). 10 Id. 2

(f) Suspension of entry or imposition of restrictions by President 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. In the Travel Ban, President Trump described the types of banned immigration as detrimental to the interests of the United States. 11 While Travel Ban One invoked a national security justification, statements made outside of the document undercut the sincerity of that justification. For example, during his presidential campaign, President Trump called for a ban on Muslims entering the United States. 12 After Travel Ban One became public, one of President Trump s advisors confirmed President Trump s desire for a ban on Muslims. 13 And Mr. Trump himself said that Christian refugees should be given priority. 14 Travel Ban One was immediately effective, on a Friday, with no notice provided to affected individuals, including individuals who were in flight and bound for the United States. 15 Even government officials were confused. 16 The Department of State revoked the visas of nationals of the seven nations banned in Travel Ban One, without 11 Id. at Sec. 3(c). 12 Jeremy Diamond, Donald Trump: Ban All Muslim Travel to U.S., CNN, Dec. 8, 2015, available at http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-banimmigration/index.html. 13 Amy B. Wang, Trump Asked for a Muslim Ban, Giuliani Says and Ordered a Commission to Do it Legally, WASH. POST. Jan. 29, 2017, available at https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-amuslim-ban-giuliani-says-and-ordered-a-commission-to-do-itlegally/?utm_term=.a93da7765fd0. 14 Laurie Goodstein, Christian Leaders Denounce Trump s Plan to Favor Christian Refugees, N.Y. TIMES, Jan. 29, 2017, available at https://www.nytimes.com/2017/01/29/us/christian-leaders-denounce-trumps-plan-tofavor-christian-immigrants.html. 15 Maryellen Fullerton, Trump, Turmoil, and Terrorism: The U.S. Immigration and Refugee Ban, 29 INT L J. REFUGEE L. 327 (2017). See also Jonah Engel Bromwich, Lawyers Mobilize at Nation s Airports After Trump s Order, N.Y. TIMES, Jan. 29, 2017, available at https://www.nytimes.com/2017/01/29/us/lawyers-trump-muslim-banimmigration.html?_r=0. 16 Matt Stevens, First Travel Ban Order Left Officials Confused, Documents Show, N.Y. TIMES, Oct. 2, 2107, available at https://www.nytimes.com/2017/10/02/us/trump-travelban.html. 3

any notice. 17 Nationals of those countries began to be turned away at airports the same day Travel Ban One was issued. In response, litigation began as early as one day after Travel Ban One went into effect. Lawyers challenged the detention of affected foreign nationals at airports because the basis for holding them, Travel Ban One, was unlawful. Federal court judges began to issue temporary restraining orders over the weekend to maintain the status quo. 18 Meanwhile, at the airports, volunteer lawyers, politicians, and members of the public gathered to offer legal services, to organize help for confused and worried family members, and to protest. 19 At the time of the implementation of Travel Ban One, no one had been confirmed by the US Senate to serve as President Trump s Attorney General. Sally Yates, a career Department of Justice official, was serving as Acting Attorney General. Yates ordered Department of Justice lawyers not to defend Travel Ban One, concluding that it was not lawful. 20 In response, President Trump fired Yates. 21 On Monday, January 30, the State of Washington filed a lawsuit against Travel Ban One. 22 The federal judge presiding over that case issued a nationwide temporary injunction against the implementation of Travel Ban One. 23 President Trump responded on Twitter, calling the judge a so-called judge. 24 Two days after the issuance of the nationwide temporary injunction, the US Court of Appeals for the Ninth Circuit upheld it. 25 The Ninth Circuit stated that there were serious concerns with Travel Ban One, including potential violations of the US Constitution s Due Process and Establishment clauses. 26 Because the case was before the Ninth Circuit on the specific issue of the temporary restraining order, it did not ultimately decide the merits of the constitutional challenges to Travel Ban One. Instead, the Ninth Circuit held that the government could not succeed in 17 See Fullerton, supra note 15. 18 Id. 19 See Bromwich, supra note 15. 20 Alan Blinder and Matt Apuzzo, Trump s Talk About Muslims Led Acting Attorney General to Defy Ban, N.Y. TIMES, Jan. 31, 2017, available at https://www.nytimes.com/2017/01/31/us/politics/sally-yates-trump-immigrationban.html. 21Id. 22 Complaint, Washington v. Trump (No. 2:17-cv-00141-JLR), available at https://www.clearinghouse.net/chdocs/public/im-wa-0029-0001.pdf. 23 Temporary Restraining Order, Washington v. Trump (No. 2:17-cv-00141-JLR), available at https://www.clearinghouse.net/chdocs/public/im-wa-0029-0005.pdf. 24 Thomas Fuller, So-Called Judge Criticized by Trump is Known as a Mainstream Republican, N.Y. TIMES, Feb. 4, 2017, available at https://www.nytimes.com/2017/02/04/us/james-robart-judge-trump-ban-seattle.html. 25 Washington v. Trump (No. 2:17-cv-00141-JLR), available at https://www.clearinghouse.net/chdocs/public/im-wa-0029-0067.pdf. 26 Id. 4

overturning the temporary restraint on its ability to implement Travel Ban One while the case proceeded to a full consideration of the issues presented. According to the US Constitution s Due Process Clause, the government shall not deprive any person of life liberty or property without due process of law. 27 This clause essentially says that if the government will deprive an individual of life, liberty, or property, it may only do so after supplying constitutionally adequate procedures. The clause explicitly applies to persons and not just citizens. To revoke a visa or to refuse to recognize a legal immigration status is a deprivation, and Travel Ban One would effectuate such deprivations without any notice. Thus, the Ninth Circuit was concerned about due process. The Establishment Clause states Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. 28 To survive a challenge under the Establishment Clause, the government must show that its legislation has a secular purpose, that its primary effect does not advance or hinder a particular religion, and that the legislation does not foster excessive government entanglement with religion. 29 The concern about Travel Ban One included that it was formulated with animus towards Muslims and that it favored other religions over Islam. After the Ninth Circuit s decision, the Trump Administration did not try to appeal the decision to the U.S. Supreme Court. Instead, it revoked Travel Ban One and issued Executive Order 13780 (Travel Ban Two) on March 6, 2017. 30 Travel Ban Two attempted to address some of the confusion created by Travel Ban One as well as to eliminate some provisions that the Travel Ban One litigation revealed to be most susceptible to legal challenge. One of the reasons Travel Ban One caused so much confusion is that it apparently was not vetted through career immigration law experts in the relevant federal agencies. 31 For example, Travel Ban One appeared on its face to apply even to lawful permanent residents. Lawful permanent residents have green cards and have potentially indefinite permission to live and work in the United States. Would a green card holder from one of the seven countries really be refused 27 U.S. CONST. amend V. 28 U.S. CONST. amend I. 29 See Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES at 1158-63 (2d. ed. 2002). 30 Executive Order 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017), available at https://www.federalregister.gov/documents/2017/03/09/2017-04837/protecting-thenation-from-foreign-terrorist-entry-into-the-united-states. 31 See note 16, supra. 5

entry into the United States? Another question that arose immediately concerned dual nationals. What if, for example, an individual holds British and Iraqi passports? Would the Iraqi passport result in a ban, despite that the person is also a British citizen? Also, it became quickly apparent that Iraqi individuals who had provided aid to the US military were covered under the ban. Was that intended? 32 Travel Ban Two expressly stated that it did not apply to lawful permanent residents. 33 It also did not apply to dual nationals, as long as the person was travelling on the non-banned passport. 34 Travel Ban Two also removed Iraq from the listed of banned nations. 35 It kept a 120-day ban on the refugee program, but eliminated the permanent ban on Syrian refugees. 36 It also did not apply to nationals on the banned list who already had visas that permitted travel to the United States. 37 In summary, Travel Ban Two was narrowed to apply to new visa applicants (both those seeking green cards and those seeking temporary entry) who are nationals of six nations: Iran, Syria, Somalia, Sudan, Libya, and Yemen. Also, it banned all refugees for 120 days. To justify the newly revised ban, Travel Ban Two raised slightly different reasons than Travel Ban One. Travel Ban Two also relied on national security concerns, but specifically cited a U.S. Department of State Country Report on Terrorism. Travel Ban Two also contains the assertion that the Attorney General reported to the President that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the FBI. 38 Litigation over Travel Ban Two led to two major court decisions from two different courts of appeals. These decisions ultimately became moot due to the implementation of Travel Ban Three, but the cases are helpful in understanding the constitutional implications of the Travel Ban. 39 In the U.S. federal court system, the courts of appeals are the intermediate courts between the trial courts (U.S. district courts) and the highest appellate authority (U.S. Supreme Court). The United States Court of Appeals for the Fourth Circuit 32 David Zucchino, Visa Ban Amended to Allow Iraqi Interpreters into U.S., N.Y. TIMES, Feb. 2, 2017, available at https://www.nytimes.com/2017/02/02/world/middleeast/trumpvisa-ban-iraq-interpreters.html. 33 Executive Order 13780 at sec. 3(b). 34 Id. 35 Id. at Sec. 1(f)-(g). 36 Id. at Sec. 6(a). 37 Id. at Sec. 3(a). 38 Id. at Sec. 1(e), (h) 39 Trump v. International Refugee Assistance Project, No. 16-1436 (Oct. 10, 2017), available at https://www.supremecourt.gov/orders/courtorders/101017zr_7k47.pdf. 6

decided that Travel Ban Two likely would fail on constitutional grounds. 40 The United States Court of Appeals for the Ninth Circuit decided that Travel Ban Two likely would fail on statutory grounds. 41 Both of these appellate opinions were reviewing temporary restraining orders issued against Travel Ban Two. Therefore, the appellate courts were reviewing whether the plaintiffs challenging the ban are likely to prevail in the litigation. In IRAP v. Trump, the Fourth Circuit determined that Travel Ban Two likely violates the Establishment Clause of the U.S. Constitution. 42 In reaching that conclusion, the court needed to address immigration law s plenary power doctrine. That doctrine, which the Supreme Court created in the late Nineteenth Century, 43 proclaims that Congress and the president have almost unlimited power when it comes to the admission of foreign nationals into the United States, especially those foreign nationals who are not lawful permanent residents. 44 This means that Congress and the president can enact laws and policies in the immigration context that the Constitution would forbid in other contexts. The Fourth Circuit needed to grapple with the plenary power doctrine because a violation of the Establishment Clause may not matter if President Trump was exercising his plenary power over immigration law. The Fourth Circuit explained in its opinion that Congress granted the President broad power to deny entry to aliens, but that power is not absolute. 45 The court further explained that President Trump s immigration actions in establishing Travel Ban Two are subject to a facially legitimate and bona fide standard of review. 46 In other words, his actions are valid as long as they are facially legitimate and bona fide. This is a weak standard of review relative to other constitutional standards of review such as strict scrutiny, 47 but this much weaker standard applies in the immigration entry context. According to the Fourth Circuit, Travel Ban Two did not pass the bona fide portion of the test because it was not issued in good faith. 48 The court concluded that while Travel Ban Two says that it was motivated by national security concerns, there is other evidence that it actually was motivated by religious discrimination. The court 40 International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017). 41 Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). 42 857 F.3d at 594-601. 43 Chae Chan Ping v. United States, 130 U.S. 581 (1889). 44 See Jill E. Family, Removing the Distraction of Delay, 64 CATH. U. L. REV. 99, 112-17 (2014). 45 857 F.3d at 572. 46 Id. at 588-92. 47 See Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES at 645-47 (2d. ed. 2002). 48 857 F.3d at 588-92. 7

cited to Trump s statements as evidence of his desire to ban Muslims. Because Travel Ban Two could not pass the bona fide portion of the immigration law constitutional standard, it could not survive even that weak plenary power scrutiny. Once the court crossed that hurdle, the court determined it could then apply the normal constitutional test under the Establishment Clause. Under that test, the plaintiffs were likely to prevail with their claim that Travel Ban Two hindered religion and fostered excessive government entanglement with religion. 49 The Ninth Circuit in Hawaii v. Trump also upheld a temporary injunction against Travel Ban Two, but for different reasons. 50 As explained above, President Trump invoked a section of the Immigration and Nationality Act, 8 U.S.C. 1182(f), as authority for his power to implement Travel Ban Two. Through that section, Congress gave the president the authority to suspend the entry of foreign nationals whose entry would be detrimental to the interests of the United States. The Ninth Circuit reasoned that that statutory provision needed to coexist with another part of the statute, 8 U.S.C. 1152(a)(1)(A), that states that [n]o person shall receive any preference or priority to 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. 51 The Ninth Circuit determined that this anti-discrimination command applies to the president s power to suspend the entry of foreign nationals under 8 U.S.C. 1182(f). Because the Ninth Circuit concluded that President Trump had failed to point to a sufficient finding that the entry of the banned nationals would, in fact, be detrimental, 52 and because there was evidence of a discriminatory motive, the Ninth Circuit upheld the temporary injunction against Travel Ban Two. 53 The US Supreme Court agreed to hear the government s appeals of IRAP v. Trump and Hawaii v. Trump. Because those appeals would not be heard until October 2017, the Supreme Court issued a decision on June 26, 2017 addressing whether any part of Travel Ban Two could be implemented before the Supreme Court could fully consider the case. 54 The Supreme Court narrowed the nationwide preliminary injunction then in effect. The Supreme Court said that Travel Ban Two could be applied to foreign nationals who lack any bona fide relationship with a person or entity in the United 49 Id. at 592-601. 50 859 F.3d at 755 (holding that President Trump exceeded the scope of the authority delegated to him by Congress ). 51 Id. at 776-79. 52 Id. at 769-775. 53 Id. at 782, 785. 54 Trump v. International Refugee Assistance Project, 137 S.Ct. 2080 (2017). 8

States. 55 If a national of one of the six banned countries does have a bona fide relationship, then they may not be subject to Travel Ban Two. A national who lacks any connections, however, may be banned. While the Supreme Court did try to provide some guidance as to what constitutes a bona fide relationship, 56 the Supreme Court s decision led to further litigation during the summer of 2017 addressing whether specific relationships are bona fide. For example, the government said that grandparents did not have a bona fide relationship with grandchildren, but the Supreme Court ruled that was incorrect. 57 Because the Trump Administration took the position that the ninety day ban period of Travel Ban Two would not begin until a court allowed it to take effect, it calculated that the ninety day period began on June 26, 2017, when the Supreme Court let the ban take effect against those without a bona fide relationship. 58 By that calculation, that ban would expire in late September. That led President Trump to establish a new travel ban on September 24, 2017. B. Travel Ban, 3.0 President Trump signed a proclamation entitled Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public Safety Threats ( Travel Ban Three ). 59 This proclamation is the product of the review of the visa system ordered in the earlier travel bans. As President Trump explained, I ordered a worldwide review of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat. 60 The proclamation explains that nearly 200 countries were evaluated. In the proclamation, President Trump invoked his authority under 8 U.S.C. 1182(f) to place new restrictions on travel to the United 55 Id. at 2089. 56 Id. 57 Trump v. Hawaii, 2017 WL 3045234 (July 19, 2017). 58 137 S.Ct. at 2085. 59 Presidential Proclamation, available at https://www.whitehouse.gov/the-pressoffice/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attemptedentry. 60 Id. 9

States. 61 He again cited to national security concerns as the justification for the latest version of the ban. 62 Travel Ban Three is potentially indefinite. It does not apply to individuals who already have a green card, a temporary visa, refugee or asylee status. 63 It also does not apply to dual nationals. 64 The ban took immediate effect on September 24 for those who lack a bona fide relationship to the United States and will take effect on October 18, 2017 for all others. 65 The new ban affects nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. 66 These countries have been deemed inadequate with regard to identity-management protocols, information-sharing practices, and risk factors. The ban affects different countries in various ways. For Chad, Libya, and Yemen, no one will be allowed to obtain a green card, and no new visitor visas will be granted. 67 For Iran, no one will be able to obtain a green card or to enter in any temporary category, except for as a student or exchange visitor. 68 Certain Venezuelan government officials are banned from visiting the United States. 69 No nationals of Somalia will be allowed to obtain a green card. 70 North Korea and Syria are subject to a total suspension of immigration, no matter the type. 71 III. The Travel Ban and the Limits of the US Constitution President Trump s Travel Ban, in all of its versions, illustrates a need to modernize immigration constitutional law in the United States. Before President Trump, many of the questions about whether the plenary power doctrine would legitimize modern acts of discrimination were hypothetical. Now, a president who has expressed his desire for a ban on Muslims is enforcing a ban that greatly affects Muslims. Courts are confronting whether the entry of foreign nationals into the United States truly is a constitution-free zone. 61 Id. 62 Id. at Sec. 1 63 Id. at Sec. 3. 64 Id. 65 Id. at Sec. 7. 66 Id. at Sec. 2. 67 Id. 68 Id. 69 Id. 70 Id. 71 Id. 10

The plenary power doctrine derives from the US Supreme Court s attempts to locate the source of and to describe the extent of the federal government s power over immigration law and policy. 72 The US Constitution reserves to the states any powers not granted to the federal government through the Constitution. 73 There is no specific mention of an immigration power in the Constitution. The Supreme Court reasoned that because the power to regulate immigration is so closely tied to sovereignty and the ability of a nation to define itself, the power over immigration must belong to the federal government. 74 Additionally, because the immigration power is rooted in sovereignty and foreign affairs, the Supreme Court left little room for the federal courts to review the immigration policy choices of Congress and the president. 75 Even though the federal courts normally have the power to decide whether legislative or executive actions are constitutional, 76 that is not always so when it comes to immigration law. The extremely hands off approach is remarkable because the courts are abdicating their role as a restraint on power assigned to them in the constitutional system of checks and balances. Since the late Nineteenth Century, the Supreme Court has carved out some exceptions to the plenary power doctrine. 77 The president and Congress retain plenary power over substantive policy choices. An example of a substantive policy choice is the decision to prohibit the entry of individuals with certain characteristics. These substantive policy choices, as described above, are subject to the weak facially legitimate and bona fide standard of review, but challenges to them are at least justiciable. If an individual challenged the government s use of a characteristic to deny legal entry, for example based on the argument that the use of that characteristic is discriminatory, the Supreme Court would hear the claim, but would resolve the challenge under the facially legitimate and bona fide standard of review. Also, the Supreme Court has recognized some constitutional restraints on the procedures the government adopts to implement immigration law. An example of a procedural choice is a decision not to disclose confidential information about a foreign national to that foreign national. The Supreme Court has held that the Due Process 72 Chae Chan Ping v. United States, 130 U.S. 581 (1889). 73 See Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES at 230 (2d. ed. 2002). 74 Chae Chan Ping v. United States, 130 U.S. 581 (1889). 75 Id. See also Family, supra note 44. 76 See Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES at 37-46 (2d. ed. 2002). 77 See also Family, supra note 44. 11

Clause protects those who have reached the interior of the United States, even if illegally. 78 For those individuals, the government may only deprive them of life, liberty or property with constitutionally adequate procedures. If the Due Process Clause applies, courts would determine if the use of confidential information is an adequate procedure. Those who are seeking entry, however, may not be protected by the Due Process Clause. 79 There is some constitutional protection for returning lawful permanent residents, but little to none for initial entrants. 80 If there is no protection, then the government may use whatever procedures it wants. 81 The state of the plenary power doctrine helps to explain the evolution of the travel ban. With Travel Ban One, even those with green cards were banned from returning. This position loosened with Travel Ban Two, and that relaxation continued to Travel Ban Three. These two later versions exempted lawful permanent residents. This avoids the legal arguments that the Due Process Clause applies to returning lawful permanent residents and that the government implemented the ban using constitutionally inadequate procedures (for example, by not providing notice). The plenary power doctrine also illuminates how the Supreme Court may have constructed the bona fide relationship standard. As explained above, the Due Process Clause generally does not protect foreign nationals seeking entry. The Supreme Court could have ordered that only returning lawful permanent residents had any cognizable arguments under the Due Process Clause. But the Supreme Court did not say that. It also did not definitively determine that the Due Process Clause protects other applicants for entry. Instead, it in essence avoided that constitutional question, at least for the time being, by refusing to allow Travel Ban Two to block the entry of those with a bona fide relationship with the United States. A Supreme Court holding that the Due Process Clause protects all of those with a bona fide relationship with the United States would represent a major change in immigration constitutional law. Previously, a new applicant s relationship to the United States or to a United States citizen was not an influential factor in the constitutional analysis. 82 In fact, the Supreme Court has not held that marriage to a United States citizen invokes constitutional protections 78 Shaughnessy v. United States ex. rel. Mezei, 345 U.S. 206, 212 (1953). 79 Id.; See also United States ex. rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950). 80 Landon v. Plasencia, 459 U.S. 21 (1982). 81 See Knauff, 338 U.S. at 544 ( Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned ). 82 United States ex. rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). 12

if the foreign national spouse is abroad and seeking to immigrate. 83 The application of the Due Process clause instead has turned on whether the foreign national has reached the interior of the United States of whether the foreign national is a returning lawful permanent resident. The long-term effect of the Supreme Court s bona fide relationship test is unknown, however. The test comes from an opinion that simply governed an intervening period between when the Supreme Court agreed to hear the government s appeal and when the cases became moot. The litigation over the Travel Ban highlights a major weakness in US constitutional law. The plenary power doctrine has created a zone of virtually no protection for foreign nationals. For entrants, the application of the Due Process Clause is not guaranteed. Substantive policy choices are subject to a very weak form of review that is exceptional in US constitutional law. Unlike the European Convention on Human Rights, there is no right to family life under the US Constitution, at least in the context of immigration law. 84 In the United States, immigration constitutional law is still tied to a Nineteenth Century version of sovereignty that heavily weighs the interests of the government and pays comparatively little attention to individual rights. Ultimately, the courts should explain whether President Trump s Travel Ban, or another policy like it, should be subject to constitutional scrutiny and should be examined under modern constitutional analysis or whether immigration law remains stuck in the Nineteenth Century. At the time of writing this article, litigation over Travel Ban 3 is beginning. These constitutional questions will arise in that litigation. President Trump s actions definitively tell us that we cannot keep the plenary power doctrine and simply hope that no Congress or no president will ever try to use its full power. Eliminating the plenary power doctrine does not mean that a president and Congress will have no power when it comes to immigration law. It simply means that their power will be subject to the same constitutional limitations that apply in other contexts. For example, a court should be able to examine whether President Trump s travel ban truly is motivated by national security concerns or whether it is motivated by discrimination. Courts should not be forced to refrain from addressing policy motivations because of the plenary power doctrine. Also, application of the Due Process Clause 83 Kerry v. Din, 135 S.Ct. 2128 (2015). 84 See also Family, supra note 44 at 120. 13

would not require the admission of every applicant. It merely would permit courts to review the constitutional adequacy of the government s procedures. IV. Conclusion President Trump s Travel Ban has evolved from a hardly disguised manifestation of his desire to ban Muslims from the United States based on vague national security concerns to a more nuanced policy that specifically references concerns about the cooperation of certain countries in vetting its nationals who wish to travel to the United States. In all of its versions, the Travel Ban forces a conversation about the state of immigration constitutional law in the United States. Will the Travel Ban force a fix to the shortcomings of immigration constitutional law? Or, will courts continue to accept the plenary power doctrine? The courts should say no more, apply the Constitution and then measure immigration action against the values enshrined in it. 14

Federal Register Vol. 82, No. 20 Wednesday, February 1, 2017 Presidential Documents 8977 Title 3 Executive Order 13769 of January 27, 2017 The President Protecting the Nation From Foreign Terrorist Entry Into the United States sradovich on DSK3GMQ082PROD with PRES DOCS By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows: Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States. Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism. In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including honor killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation. Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes. Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat. (b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President VerDate Sep<11>2014 16:43 Jan 31, 2017 Jkt 241001 PO 00000 Frm 00003 Fmt 4705 Sfmt 4790 E:\FR\FM\01FEE0.SGM 01FEE0

sradovich on DSK3GMQ082PROD with PRES DOCS 8978 Federal Register / Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence. (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C 2 visas for travel to the United Nations, and G 1, G 2, G 3, and G 4 visas). (d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification. (e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C 2 visas for travel to the United Nations, and G 1, G 2, G 3, and G 4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs. (f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. (g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked. (h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order. Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not VerDate Sep<11>2014 16:43 Jan 31, 2017 Jkt 241001 PO 00000 Frm 00004 Fmt 4705 Sfmt 4790 E:\FR\FM\01FEE0.SGM 01FEE0

Federal Register / Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents 8979 sradovich on DSK3GMQ082PROD with PRES DOCS used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant s likelihood of becoming a positively contributing member of society and the applicant s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States. (b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order. Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States. (b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize 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. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization. (c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest. (d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest. (e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship and it would not pose a risk to the security or welfare of the United States. VerDate Sep<11>2014 16:43 Jan 31, 2017 Jkt 241001 PO 00000 Frm 00005 Fmt 4705 Sfmt 4790 E:\FR\FM\01FEE0.SGM 01FEE0

sradovich on DSK3GMQ082PROD with PRES DOCS 8980 Federal Register / Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents (f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order. (g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement. Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda. Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States. (b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational. Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. (b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected. Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable. Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter: VerDate Sep<11>2014 16:43 Jan 31, 2017 Jkt 241001 PO 00000 Frm 00006 Fmt 4705 Sfmt 4790 E:\FR\FM\01FEE0.SGM 01FEE0

Federal Register / Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents 8981 (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorismrelated activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later; (ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and (iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses. (b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels. Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. sradovich on DSK3GMQ082PROD with PRES DOCS VerDate Sep<11>2014 16:43 Jan 31, 2017 Jkt 241001 PO 00000 Frm 00007 Fmt 4705 Sfmt 4790 E:\FR\FM\01FEE0.SGM 01FEE0

8982 Federal Register / Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. THE WHITE HOUSE, January 27, 2017. [FR Doc. 2017 02281 Filed 1 31 17; 11:15 am] Billing code 3295 F7 P sradovich on DSK3GMQ082PROD with PRES DOCS VerDate Sep<11>2014 16:43 Jan 31, 2017 Jkt 241001 PO 00000 Frm 00008 Fmt 4705 Sfmt 4790 E:\FR\FM\01FEE0.SGM 01FEE0 Trump.EPS</GPH>