27 Jun 2017

Is the President’s ‘Travel Ban’ Illegal?

The short answer is: we don’t know yet. President Trump’s ‘travel ban’ is actually the culmination of Executive Order 13769 and Executive Order 13780. Both of these Orders have a number of previsions and the travel ban is just one of many. By and large, the Orders limit immigration, especially for individuals seeking asylum or refugee status. Though unpopular, the Orders certainly aren’t illegal or even unprecedented. So, what makes the ban different?

Within the days of President Trump’s announcement on January 27, 2017, the State of Washington filed a suit alleging that the travel ban provision violated ten laws, including The First, Fifth, Fourteenth, and Tenth Amendments, The Immigration and Nationality Act, and the UN Convention Against Torture.

What makes the ban so legally contentious is that the Trump Administration lists specific countries which will be subject to this new restriction. This has been read as violating the non-discrimination clauses in a number of immigration statues. The constitutional challenges to the ban are based on the foundation of due process and fair procedure.

In response to the arguments raised in State of Washington v. Trump, the courts issued a temporary restraining order that prevented the travel ban from being enforced.

Executive Order 13780 was passed on March 6, 2017, and include a watered-down version of the travel ban. A week later, the State of Hawaii filed their suit, citing the same laws that the State of Washington identified in their original case. The courts, once more, issued a restraining order to prevent the travel ban from being enacted.

The lower courts’ decision to block the travel ban is as far as their jurisdiction really stretches. For any true determination of ‘illegality,’ further review must be undertaken by the Supreme Court.

Last month, the Trump Administration decided to appeal the case to the Supreme Court, however the Supreme Court is under no obligation to hear it. The Justices have until June 26, 2017 to decide whether or not to take the case. Until then, the restraining orders will remain in place, and the decisions of the lower courts will stand.

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