5 Questions About The Law And Trump's Immigration Order

Jan 30, 2017
Originally published on January 30, 2017 11:06 am

President Trump's executive order on immigration late Friday ignited nationwide protests — and a slew of legal challenges.

At least four federal judges across the country have blocked part of the order and temporarily ensured refugees and travelers who reached U.S. soil would not be deported.

Here's an explanation of what happened so far and what could come next.

1. Who is covered by the executive order?

The order suspended new refugee admissions for 120 days. It capped the total number of refugees allowed into the country this year at 50,000, far lower than the Obama administration had allotted. And travelers from seven countries — Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia — are barred for 90 days. Border Patrol agents and lawyers said the order and statements by top White House officials have not made clear how Green Card holders, or lawful permanent residents, are to be treated.

2. What have the federal courts ruled so far?

The American Civil Liberties Union sued in Brooklyn over the detention of two Iraqi clients at John F. Kennedy International Airport. Late Saturday, Judge Ann Donnelly issued a temporary restraining order barring the deportation of as many as 200 people. Judge Donnelly cited "irreparable harm" they would face, and she demanded that the Trump administration provide a list of all affected refugees and travelers. Later, a federal judge in suburban Virginia ordered that travelers be allowed to consult with volunteer attorneys. And another judge in Massachusetts ruled the travelers not only were free from deportation, but that those being held must be released from federal detention. There are reports from pro bono lawyers that border agents may not be complying with some of those directives from the federal judiciary.

3. What is the Trump administration saying about this?

White House officials said the policy is designed to protect U.S. borders and to restrict the entry of terrorism suspects. The Department of Homeland Security said fewer than 1 percent of the average 325,000 people who journeyed to the U.S. on Saturday were "inconvenienced." DHS said the president's order remains in place and "the U.S. government retains its right to revoke visas at any time if required for national security or public safety."

On NBC's Meet The Press on Sunday, White House chief of staff Reince Priebus said Green Card holders would not be affected "moving forward," but he went on to say that they would "be subjected to further screening" at the border.

4. Where do the legal challenges go from here?

The president has sweeping authority on matters of immigration. Federal law allows the president to suspend people or classes of people if he determines their entry is "detrimental" to the nation. But a 1965 update to that law, the Immigration and Naturalization Act, clarifies that people should not experience preferences or discrimination on account of their "race, sex, nationality, place of birth or place of residence."

Trump's order appears to grant some religious preference to Christians and to target seven majority-Muslim countries, though his order points out that people from those countries had already been singled out for extra vetting during the Obama years.

Lawyers from the American Civil Liberties Union, immigrants rights groups and other advocates are likely to file more lawsuits in the coming days on the grounds that the order violates the 1965 immigration law, the right to due process, and the First Amendment clause that bars Congress from establishing a religion, among other things.

White House officials insisted they did not set out to create a "Muslim ban." But Trump associate Rudy Giuliani told Fox News that Trump had reached out to him and others about how to make such a ban, which Trump proposed on the campaign trail in December 2015, legal. And the son of national security adviser Michael Flynn tweeted about a "Muslim ban," as well. Those statements could be used by refugee advocates to demonstrate the administration's intent.

5. What happens with Trump's nominees for key Cabinet posts?

Democrats argue that key offices within the State Department and the Justice Department were in the dark about the immigration order before it was made public. They want to know if Alabama Republican Sen. Jeff Sessions, the nominee to be attorney general, advised Trump on the order — and whether Sessions will commit to making sure Justice Department lawyers are consulted in the future. The Senate Judiciary Committee is supposed to vote on Sessions' nomination on Tuesday. If he passes that vote, Sessions could be confirmed by the full Senate by the end of the week.

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We are in the midst of an epic few days of the American story. President Donald Trump delivered an order on Friday stopping all refugees and visitors from some countries from entering the United States.


That led to a weekend of confusion around the world - detentions, releases and protests at airports across the United States. Here in Washington, in fact, you could have spent most of your day going from one protest to another around the city. Overseas, a man named Fuad Sharif tried to fly from Iraq, which is one of the affected countries, to get his Ph.D. in Nashville, Tenn.

FUAD SHARIF: I read about it on the internet. I (unintelligible) about it's a growing city. It's a nice city. It's called Music City.

INSKEEP: Mr. Sharif, his wife and their three children had visas to come to the United States and even got their boarding passes for a flight and made it all the way to the gate for a connecting flight in Cairo, Egypt, when they learned they could not get on the plane.

SHARIF: I was looking at the faces of my wife and kids. They turned pale yellow, and they were about to faint and fell down to the ground. All dreams collapsed in one second.

INSKEEP: All dreams collapsed in one second, Mr. Sharif said. They're now back in Erbil, Iraq, which is where they started. The White House says the confusion here is a small price to pay for an act that keeps Americans safe. And we're going to talk about that throughout the program. NPR justice correspondent Carrie Johnson is on the line now.

Carrie, good morning.

CARRIE JOHNSON, BYLINE: Good morning, Steve.

INSKEEP: Would you clarify for us who exactly is covered by this order?

JOHNSON: President Trump's order suspended new refugee admissions for 120 days, and it singled out travelers from seven countries - Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia. They're barred for 90 days. Now, Steve, one huge point of confusion all weekend long is how the order covered green card holders.


JOHNSON: Those are people who are permanent residents of the U.S. And some of them were detained at airports this past weekend. Homeland Security leaders now say those folks are allowed in so long as there's no evidence they've been up to no good overseas.

INSKEEP: OK. So they actually adjusted the order, according to the reporting, at the last moment to include green card holders. And now they've decided, after some of the blowback, to exclude, more or less, green card holders. Is that right?

JOHNSON: It seems as if they've landed at the position that green card holders are going to be evaluated on a case-by-case basis, Steve.

INSKEEP: Oh, which is actually what the language said originally. But they're just talking about it differently.

There were legal challenges over the weekend, and judges sided with the the opponents, at least in some cases. Where do things stand?

JOHNSON: Yeah. Steve, in at least four cases, federal judges sided with migrants or travelers. The ACLU sued in Brooklyn over the detention of two clients who were held at JFK Airport. Judge Ann Donnelly issued a temporary restraining order barring not just the deportation of them but as many as 200 other people or more. The judge cited irreparable harm those folks would face if they were sent back. And she's demanded the Trump administration provide a list of all affected refugees and travelers, Steve.

INSKEEP: OK. But that's just people who were in transit or already in the United States, right? The president has the right to keep out other people if he chooses to do that.

JOHNSON: He does. The president has broad legal authority in this regard. Two other judges, though, did something slightly different. A judge in Virginia ordered travelers a green card holders be allowed to consult with attorneys. Another in Massachusetts ruled that folks were not only free from deportation who had been stuck in the airport but they need to be released.

Steve, there are reports from pro-bono lawyers all weekend that border agents may not be complying with some of those directives from federal judges, which is a problem.

INSKEEP: Is that clear that they are or aren't? And is the administration openly defying the courts?

JOHNSON: We don't know for sure. We've heard from ACLU lawyers, other advocates for immigrants that there's evidence. They're being kept from talking with attorneys about the situation. It is mysterious at this point, and some Democrats in Congress are demanding a meeting with DHS.

INSKEEP: OK. So we'll keep looking for answers as we can get them.

What is the president saying about all this, Carrie?

JOHNSON: Well, after a torrent of criticism all weekend, President Trump finally weighed in with a statement. He says it's all about protecting American borders and keeping the country safe. Homeland Security says only a small percentage of the average number of people who journeyed to the U.S. this weekend were - in its words - inconvenienced. And the DHS says no matter what these judges' rulings say, the president's order remains in place and the U.S. government can revoke visas at any time.

INSKEEP: What happens to all the legal challenges now, given that the order, broadly - with some exceptions - is in place?

JOHNSON: Well, Steve, the White House says the president has sweeping authority on immigration and at the border. There is a federal law that allows the president to suspend people if he determined their entry is detrimental to the nation. But there are also laws that conflict a little bit. There's a 1965 law on the books that says people should not experience preferences or discrimination on the basis of race, sex, nationality when it comes to immigration. And Trump's order appears to grant some religious preference to Christians, which could be a target of lawsuits moving forward, including one, I'm hearing, by the Council on American-Islamic Relations, which could be coming very soon.

INSKEEP: Are you referring to the provision that says persecuted religious minorities can still get in? And the president said in an interview the other day - yeah, I meant Christians by that - maybe not exclusively, but that's what he was talking about.

JOHNSON: Yeah. And, you know, opponents of this order seem to suggest that this is a disguised way, a clever way by the administration to impose what they call a Muslim ban. Now, Donald Trump says this is not a Muslim ban. But Trump's close associate Rudy Giuliani told Fox News over the weekend that Donald Trump reached out to him and others about how to make such a ban legal and give it legal cover.

Steve, those statements could be used by refugee advocates to demonstrate some discriminatory intent by the administration in lawsuits going forward.

INSKEEP: Carrie, thanks very much as always.

JOHNSON: You're welcome.

INSKEEP: That's NPR justice correspondent Carrie Johnson. Transcript provided by NPR, Copyright NPR.