High Court Under the Microscope; Donald Trump and the Refugee Ban

HIGH COURT UNDER THE MICROSCOPE

Donald Trump v International Refugee Assistance Project

These cases are about an executive order made by the United States to alter how foreign nationals enter the country. The key elements of this were to suspend entry from six designated countries for 90 days. This was challenged on two grounds, certiorari – which is ‘a writ or order by which a high court reviews a case tried in a lower court’ – and applications to stay the preliminary injunctions. These were granted.

The executive order presented a policy against countries representing a heightened terrorist risk;

·        Iran

·        Iraq

·        Libya

·        Somalia

·        Sudan

·        Syria

·        Yemen

The officials were told that they must review how adequate it would be to restrict visas from these areas for ninety days. The court was also alerted to an alteration to the United States Refugee Admissions Program which reduced the number of refugees able to enter the country for 120 days.  

A second executive order addressed early concerns made by the Assistance project and requires that the secretary of homeland security conducts a global review to determine which foreign governments provide adequate information about nationals applying for a USA visa. Any countries found to be deficient would be given 50 days to alter their practices. These counties would be required to impose additional procedures as necessary to ensure that individuals seeking admission as refugees do not pose a threat to national security.

Finally – and perhaps most controversially- the order determined that the entry of more than 50,000 refugees in the fiscal year of 2017 would be detrimental to the interest of the USA.

There were several responses to this order but the establishment clause of the first amendment was the most successful. It claimed that this act was not motivated by concerns of national security but islamophobia. In the first instance, most of the court ruled that the primary purpose of clause 2(c) – preventing entry of certain migrants was based on religious fears. This violates the first amendment.

This was further supported by the test that a reasonable person knowing all the claims made against the migration of Muslims into America by Donald trump would conclude that this policy was religiously motivated. Therefore, the court upheld the injunction which prevented the enforcement of s2(c) against foreign nationals seeking to enter the country.

On June 12, a request for a certiorari was entered. In doing so a new issue was added to the cases which is that the courts had not altered the date at which the effect of the act would be moot because 90 days would be over. In response to that issue Donald Trump issued a memorandum determining that ‘the date on which the injunctions in these cases are lifted or stayed with respect to that provision’ – meaning that the provision would continue until otherwise extinguished [Direction of National Intelligence (June 14, 2017).

The injunctions were barred against 2(c) for any person who had no connection with the United States through a relationship or other entity. This means that any married person, child or person connected to other legal entity can still enter the country. However, this is not intended to exclusively determine the rights of the parties but merely to provide temporary equitable relief to both parties. It was done in the overall public interest [University of Tex. V Camenisch 451 U.S. 390, 395 (1981)]. This decision was based on the reason that ‘an unadmitted and nonresident alien…has no constitutional right of entry to this country’. Given that ‘the interest in preserving national security is an urgent objective of the highest order’ it would be inappropriate to prevent the government from pursuing that objective [Holdver v Humanitarian Law Project, 561 U.S. 1, 28 (2010)].

Effectively this ruling acknowledges the delicate balance that the government must walk between pleasing the morals of the public and acknowledging the dangers of the modern world. Whether the order is truly religiously motivated is difficult to infer given the context of global terrorism – and despite the claims of Donald trump against Islam it is difficult to truly draw issue given the lack of explicit mention of Islam. It does beg the question if this order is purely religiously motivated, combined with the brash nature of the current president – why not just prevent the entry of all Muslims if that was the true intention of the order?

Some claim that Trump is merely following the prior policy of President Obama who first identified the countries on the list. It is true that his predecessor did initiate the list and Obama emphasized that it was a part of a continued focus on the threat of foreign fighters. It should also be noted that the act targets countries that have been reviewed and identified as ‘troublesome travel areas’ which means that they are unsafe for American citizens to travel to. While there is some opposition to this counter argument claiming that it was merely the travel to these areas by US citizens that was worried about not the influx of migrants – if US citizens can’t travel to a dangerous country – there must be a concern about the opposite.

The issue is far more complex than some policy makers realize, growing concerns about citizen welfare and greater fear growing in European countries, it’s natural for any leader to want to recognize these concerns.