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A closer look at the fight over President Trump's immigration executive order

President Donald Trump’s executive order instituting a temporary travel ban on non-citizens from several Muslim countries and indefinitely shutting down acceptance of Syrian refugees continues to stir controversy and confusion.

A temporary restraining order is currently blocking the implementation of the order, but a panel of appellate court judges will hear arguments on the matter late Tuesday. Trump said Tuesday that the actions he is demanding are simply “common sense,” but critics insist the order is unconstitutional.

What does the executive order do?

President Trump asserts that the actions directed by the order are necessary to protect the interests of the United States.

Citing the September 11, 2001 attacks and other terrorism-related crimes committed by foreign nationals in the years since, the order states that the U.S. “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.”

Therefore, Trump ordered the suspension of immigrant and nonimmigrant entry from seven Muslim-majority countries that were previously identified as states of concern for terrorism by the Obama administration. That list includes Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen.

Homeland Security Secretary John Kelly testified before Congress Tuesday that there are currently no plans to add more countries to that list. Kelly also took the blame for some of the confusion that resulted from the rollout of the order.

The order requires the Department of Homeland Security, State Department, and Director of National Intelligence to compile a report within 30 days on the information that would be necessary to ensure that an individual seeking entry to the country are not a security or public safety threat. Within 60 days after that, foreign governments will be required to provide that information.

Other provisions of the order would halt the U.S. Refugee Admissions Program for 120 days and prioritize persecuted religious minorities once it resumes. Critics have alleged that this policy would discriminate against Muslims and benefit Christians.

While most refugee admissions would be blocked for four months to reassess the vetting process and a maximum of 50,000 would be accepted in 2017, refugees from Syria would be barred indefinitely because allowing them into the country “is detrimental to the interests of the United States.”

Every 180 days, the Department of Homeland Security and the attorney general would be required to compile information on the number of foreign nationals charged or convicted of terrorism-related offenses, the number of immigrants radicalized after entry, and the number of gender-based acts of violence against women by foreign nationals.

Can Trump do that?

Under the Immigration and Nationality Act of 1952, “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.”

The White House claims that statute grants Trump the authority to restrict immigration and visa applications from any country or class of people he chooses in the name of national security.

Subsequent legislation passed in 1965 prohibits discrimination against visa applicants due to national origin, but defenders of Trump’s order argue that applied only to issuing visas, not the president’s right to restrict entry to the country.

So what’s the problem?

Not everyone agrees with that reading.

Some claim the order is a version of the Muslim ban Trump proposed during his campaign, but others dispute that because dozens of other Muslim-majority nations are not included. Questions have also been raised about the national security justification since no successful terrorist attacks have been carried out in the U.S. by immigrants or refugees from the seven countries affected.

There has been lack of clarity about whether the order was intended to apply to people already approved for green cards and foreign nationals living in the U.S. who travel abroad and attempt to return. Government lawyers have maintained in recent filings that it does not apply to lawful permanent U.S. residents from those seven countries.

James Hathaway, director of the Program in Refugee and Asylum Law at the University of Michigan, said the order may also run afoul of international law because the populations targeted have not posed a threat to the U.S. before.

“The bottom line is that there is a gross mismatch between the risk asserted and the persons banned – of precisely the kind that is at odds with the ‘objective and reasonable’ test that a policy must satisfy to avoid characterization under international law as illegal discrimination, for example, under the Civil and Political Rights Covenant,” he wrote in a post on Just Security.

In court filings and interviews, administration officials have suggested the order is justified by classified information about potential threats that the court has not seen.

The executive order has faced multiple legal challenges across the country. A temporary stay was issued by a federal judge in Massachusetts the day after the order was signed, but that was later lifted.

Late last week, a federal judge in Seattle considered arguments from the attorneys general of Washington and Minnesota against the order. U.S. District Judge James Robart granted a temporary restraining order (TRO) Friday blocking the government from enforcing the order nationwide until a full hearing could be held on a preliminary injunction.

Why do Washington and Minnesota oppose the order?

The complaint filed by Washington Attorney General Bob Ferguson makes several arguments against the order, which he says is “separating Washington families, harming thousands of Washington residents, damaging Washington’s economy, hurting Washington-based companies, and undermining Washington’s sovereign interest in remaining a welcoming place for immigrants and refugees.”

Approximately 7,280 non-citizens from the seven countries affected live in Washington, and immigrant or refugee-owned businesses employ 140,000 in the state. Washington companies like Microsoft, Amazon, and Starbucks rely on H1-B visas to employ thousands of skilled foreign technology workers.

The complaint emphasizes Trump’s campaign rhetoric about banning Muslims and his statements about prioritizing Christian refugees, alleging that the order discriminates against some Washington residents based on their religion or country of origin.

Existing statutes entitle some non-citizens arriving in Washington to apply for asylum and to be protected from return to countries where they could be subjected to torture, provisions that the blanket ban on entry may violate. The complaint also questions the order bypassing the federal government’s formal rule-making process.

Jacqueline Stevens, a professor of political science and legal studies at Northwestern University, said the argument that the order violates existing immigration statutes could prove more persuasive than framing it as a violation of constitutional rights. The Supreme Court has generally given broad deference to the executive and legislative branches, so claiming Trump lacks the authority to act may not sway them.

She pointed to an amicus brief filed by the National Immigrant Justice Center that claims the order is contrary to statutes governing issuance of visas to crime victims, spouses and other groups.

“I think that the statutory and regulatory arguments against the ban are probably stronger,” she said.

Why did a judge issue a temporary restraining order?

Judge Robart agreed with the Washington and Minnesota attorneys general that the continued execution of the order until a hearing on the injunction would cause irreparable harm. He wrote that the states have also established “serious questions” about the merits of the executive order.

“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations, and freedom to travel,” Robart wrote in the TRO.

Jonathan Turley, a law professor at George Washington University and constitutional law expert, said Robart’s order did not provide detailed legal reasoning, but it is very difficult to reverse a temporary order on appeal before the final opinion is reached.

“Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy,” Turley wrote on his blog. “Of course, nothing is ‘normal’ about this controversy in terms of procedure or policy. With a major executive order stayed, the Ninth Circuit is clearly moving with dispatch but deliberation.”

How did the government lawyers respond?

In a motion to the appellate court to stay the TRO, the federal government rejected the points made by the states and disputed Robart’s conclusion.

The government questioned the standing of states to challenge the denial of entry to foreigners and insisted non-citizens outside the U.S. have no right to judicial review of denial of a visa. Even an alien who has been granted a visa has no right to admission into the country and no protection against it being revoked, the motion stated.

The motion also denied that the executive order is discriminatory toward Muslims, claiming both the suspensions of visas and the freezing of the refugee program are “neutral with regard to religion.” The clause prioritizing persecuted religious minorities for refugee admission would also apply to Muslims from a majority Christian country.

The government also accused to states of asking the judge to “take the extraordinary step of second-guessing a formal national security judgment made by the president himself.” It suggested such a decision would violate the constitutional separation of powers and put the public in danger because the president believes the current screening system is flawed.

“The potential national security risks and harms resulting from the compelled application of procedures that the president has determined must be reexamined, for the purpose of ensuring an adequate measure of protection for the nation, cannot be undone,” the motion stated.

The government attempted to equate Trump’s order with actions taken by previous presidents to restrict immigration in certain ways for certain periods of time. Stevens said this is not the same.

“What’s different is the substance, and that’s that it’s much more reaching and the idea that you would just not recognize visas that were previously issued on a mass scale without individual level determinations,” she said.

In its latest filing, the government proposed limiting the scope of the temporary injunction to only protect previously admitted aliens who are now abroad or who plan to travel and return to the U.S. in the future. It also objected to the TRO being applied nationally.

How did President Trump respond?

Not well. Over the weekend, he fired off numerous tweets accusing the “so-called judge” of endangering national security. He also complained that the “ridiculous” Seattle ruling superseded the previous one in Massachusetts.

“What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?” he wrote Saturday. “Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision.”

He also blamed Robart personally for any “potential terrorists” who get into the country while the TRO is in effect. Those comments have generated bipartisan criticism.

“Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!” the president tweeted Sunday.

On Monday, Trump urged the court system to act fast because “the threat from radical Islamic terrorism is very real.”

Press Secretary Sean Spicer insisted at a briefing Tuesday that the president respects the judiciary and the decisions made by judges, despite his tweets attacking Robart.

So what now?

At 6 p.m. ET Tuesday, attorneys for both sides will make their case to the Ninth Circuit Court of Appeals. Even if the judges agree to stay the TRO and resume implementation of the order, the legal battle is far from over.

Stephen Yale-Loehr, an immigration law expert and professor at Cornell University Law School, said the court must ultimately weigh the president’s immigration authority against the adverse effects of his policies on U.S. citizens and companies.

“The Ninth Circuit will have to decide the constitutional limits of the president’s immigration powers. It is hard to predict which way the Ninth Circuit will decide,” Yale-Loehr said in a statement. “No matter how the Ninth Circuit rules, the decision will be historic.”

A court spokesperson told the Associated Press a ruling is not expected until later in the week.

Speaking to the press pool Tuesday, Trump said he will take the issue to the Supreme Court if necessary.

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