Legal Challenge Temporarily Blocks Trump Muslim Ban

Posted Feb. 1, 2017

MP3 Interview with Pardiss Kebriaei, senior staff attorney with the Center for Constitutional Rights, conducted by Scott Harris

muslimban

The first week of Donald Trump’s presidency has seen a succession of controversial changes to U.S. policy that have triggered protests across the nation. However, Trump’s Jan. 27 executive order, titled "Protection Of The Nation From Foreign Terrorist Entry Into The United States," provoked tens of thousands of people to demonstrate their opposition at airports from coast to coast. The executive order suspended entry of all refugees to the United States for 120 days and bans travel from seven Muslim majority nations for 90 days, including Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. The order also blocks all refugees from Syria indefinitely, and reduces the total number of refugees admitted into the U.S. during the 2017 fiscal year to 50,000, down from the previous number of 110,000.

In response to Trump’s executive order, the ACLU and other activist groups filed class action lawsuits challenging the president's order. Quickly, four federal judges issued stays temporarily blocking enforcement of immigration restrictions. While the Trump administration denies that the order singles out Muslims, the executive order includes preferential treatment for Christians. Civil liberties attorneys have challenged Trump’s executive order based on the fact that discrimination against refugees on the basis of religion is unconstitutional. Acting U.S. Attorney General Sally Q. Yates, who had served as deputy attorney general under President Obama, refused to defend the order and was summarily fired by President Trump.

Heads of state across the globe, Christian leaders, Democratic lawmakers and 15 state attorney generals have all condemned Trump’s immigration restrictions. Between The Lines’ Scott Harris spoke with Center for Constitutional Rights Senior Staff Attorney Pardiss Kebriaei, who examines the constitutionality of Trump’s executive order curbing immigration from majority Muslim nations. [Rush transcript.]

PARDISS KEBRIAEI: It is discriminatory. It's discriminatory by virtue of fact that it singles out mostly Muslim-majority countries. The discriminatory aspect of this order is completely clear when you look at things like this carve-out it has for refugee admissions, where if you are a religious minority in a country alleging or facing religious persecution, that may make you eligible for admission. But otherwise, you would not be. So for example, an Iraqi Christian who is facing persecution – religious persecution by virtue of their Christian faith – in Iraq or Syria, by ISIS, would be entitled to be considered for admissions to the United States. Whereas, an Iraqi Muslim who is fleeing violence and war, and physical harm in that way, would be barred from admission.

So that's what the order does. It's also introduces broad new vetting procedures for anyone, any travelers to the United States. It ties one's beliefs, one's ideology to criteria that could be considered for admission. It's unclear exactly how beliefs and sort of ideology would be implemented in terms of new vetting procedures and what that would actually look like. But it asserts that broadly as a criteria that can be considered.

So it's really broad. I think when we woke up Saturday morning and heard reports, it changed things overnight. Obviously, with a stroke of pen. I mean, it was signed Friday night, Saturday morning we awoke to reports of people being pulled off planes abroad. Families being separated at airports. Hundreds of people being detained. By the end of Saturday, there was a federal court order staying (suspending) parts of the order for people who were in transit at the time the order was signed and were being detained at airports in the United States, being told that they couldn't enter. The order was stayed with respect to some of those people and there were massive protests. I mean, the response was overwhelming. And so, I think for our feeling, anyway, and the (unintelligible) quickly went from kind of shocked and just being appalled in the morning to real hopefulness at seeing just the massive public response. People turning out and saying this is not who we are; this is not humane.

BETWEEN THE LINES: What is the strength of the argument, the constitutional argument against the Trump administration executive order here on the suspension of immigration from these seven nations? I'd heard that this could all go the way to the Supreme Court. But how much power does a president have to contravene laws on the books that prohibit discrimination based on nation of origin or religion?

PARDISS KEBRIAEI: Well, there is wide discretion – executive discretion and congressional discretion when it comes to the nation's borders and when it comes to immigration control. That said, no one is above the Constitution, no one is above the law. I think when you read this order, it is clearly discriminatory in its impact. It may talk about specific countries – these are Muslim-majority countries. The impact, the overwhelming impact of this order is addressed to one specific faith of people. Many of those people are U.S. lawful residents with constitutional rights and those rights must be respected. So the president has a lot of power when it comes to immigration. But no more power than the Constitution gives him.

So I think, yeah, there have already on night one, on Day One, there were challenges filed in court, temporary stays issued by federal judges and those cases are going to continue. And there are new lawsuits being developed now that we're going to see in coming days. Those are responses legally. There's also responses politically by Congress. There are bills being introduced or talked about being introduced, calling for the president to kick back this order to revoke this order.

So we could see sort of its end, and we should see its end in response to pressure from different directions. But at least that's true – its unconstitutionality by the courts. I think, already we're seeing that federal judges view this order as violating the Constitution, at least in certain respects, and that's why these stays have been issued. And they are temporary stays, but they are because judges have found that there is merit to the arguments that are being put forward. So, while these are interim stays, and there have to be further argument and decision on the merits fully, the initial reading of judges of the arguments that have been put forward, is that they have merit.

Learn more about the constitutional arguments against Trump's executive order restricting immigration by visiting the Center For Constitutional Rights at ccrjustice.org.

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