President Trump signed an executive order in late January to the bar, for at least ninety days, almost all permanent immigration from seven Muslim-majority countries, including Syria and Iraq. It has many supporters and critics in New Jersey and has spawned numerous lawsuits in federal courts across the country. These lawsuits involve non-profit advocacy groups as well as state attorneys general (including New York’s) challenging the order.
There has been some initial success with some travelers who were trapped at airports being allowed to leave. But as far as mounting a successful overall challenge, in the long run, the plaintiffs may have a difficult time. Generally, the President has much discretion when it comes to immigration and border controls.
The one possibly successful argument was discussed by David J. Bier, an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity, in a New York Times opinion piece. In it, Bier states:
- The order is illegal because more than fifty years ago Congress outlawed discrimination against immigrants based on their national origin.
- There were earlier prohibitions against immigration based on where potential immigrants came from. In the late 19th century, federal law excluded all Chinese, nearly all Japanese, and later all Asians in the “Asiatic Barred Zone.” In 1924 Congress enacted a “national-origins system” favoring Western Europeans and excluding most Eastern Europeans, almost all Asians and Africans.
- A law that might invalidate the administration’s order is the Immigration and Nationality Act of 1965, which banned all discrimination against immigrants on the basis of their national origin. It provided those living in each country an equal shot at filling immigration quotas.
- The administration has argued it can still discriminate based on a 1952 law allowing the president the ability to “suspend the entry” of “any class of aliens” that he finds are detrimental to the interest of the United States.
- This power was restricted by the law passed 13 years later, which states no person could be “discriminated against in the issuance of an immigrant visa because of the person’s…nationality, place of birth or place of residence.”
- The Congressional intent at the time was to protect immigrants and American citizens who wanted to sponsor family members or to marry a foreign-born spouse without being subject to discrimination.
- Presidents multiple times have kept out groups of foreigners under the 1952 law, but none has ever barred an entire nationality of immigrants without exception. In the 1990s, it was federal government policy to require Vietnamese who fled their country to Hong Kong to return to Vietnam to apply for immigrant visas, while allowing applicants from other countries to apply for visas wherever they wished. The policy was blocked by a federal appeals court.
Another argument against the ban is based on the First Amendment to the U.S. Constitution. Its establishment clause prohibits the federal government from establishing an official religion. As part of the order, religious minorities in these majority Moslem countries would be given preferential treatment. This differs based on religion may be seen as unconstitutional.
As these multiple cases make their way through the legal system, the end result may not be the entire order being held as lawful or unlawful. Some parts may survive judicial scrutiny, while others may not.