Challenging the Ban: Legal Arguments by Attorney Generals of Wash., Minn., Against Trump Executive Order

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By David Zvirman, Staff Writer

On February 9, 2017, the Ninth Circuit upheld the suspension of President Donald Trump’s executive order concerning the oft-called “travel ban.”[4] The actual title of this order is Protecting the Nation from Foreign Terrorist Entry into the United States, and it was executed on January 27, 2017.[1][2][3] This moment was the latest in a battle between those opposed to the order and the Trump administration.

Ultimately, it will be the legal arguments that decide the fate of this order. In an effort to understand the legal issues, I looked at the actual complaint filed by the attorney generals of Washington and Minnesota to see what legal arguments they advanced to stop the order. The issue may likely go before the Supreme Court of the United States.

The initial complaint was filed on January 30, 2017, by Washington Attorney General Bob Ferguson.[2][3] An amended complaint was filed on February 1, 2017, adding Minnesota Attorney General Lori Swanson.[3] In its introduction, the complaint alleges that the executive order “is separating families, harming thousands of the States’ residents, damaging the States’ economies and hurting State-based companies, and undermining both States’ sovereign interest in remaining a welcoming place for immigrants.”[3]

The complaint focuses on two key portions of the executive order, Section 3 and Section 5.[3] Section 3 suspends entry of immigrants and nonimmigrants from Iran, Iraq, Syria, Yemen, Libya, Sudan, and Somalia from entering the country for 90 days, stating that such entry would be “detrimental” to the U.S.[3] Section 5 suspends the U.S. Refugee Admission Program entirely for 120 days; after this suspension, the State Department is to prioritize refugees who claim religious persecution — provided that their religion is the minority religion in their country.[3] Section 5 further permanently suspends entry of Syrian refugees, again claiming such entry would be “detrimental” to the U.S.[3]

The complaint goes on to set out nine causes of actions against the ban.[3] The following is an explanation of the causes of actions set forth in the complaint. My goal is for readers to better understand the legal arguments being asserted against the ban, allowing you to make your own rational conclusions on this issue.

The first cause of action asserted in the Complaint is that it violates the Equal Protection Clause of the Fifth Amendment.[3] The Complaint alleges that Sections 3 and 5 of the order taken together with Trump’s anti-Muslim rhetoric (which the complaint lists) show an intent to discriminate against people based on their country of origin or religion without lawful justification.[3] In laymen’s terms, the states assert that, in light of Trump’s anti-Islam campaign statements, the order is as an unjustified attack on the constitutional protections guaranteed to non-citizens based on their countries of origin or religious beliefs.

Second, the next cause of action holds that the order violates the Establishment Clause of the First Amendment.[3] Again, it is alleged that sections 3 and 5 of the order, taken together with Trump’s statements, show an intent to disfavor Islam and favor Christianity.[3] This is in violation of the First Amendment’s prohibition on the federal government officially preferring one religion over another.[3] Here, the states assert that Trump’s statements about fast-tracking Christian refugees over Muslim refugees show that he is attempting to instate a policy where the U.S. would favor one religion over another — a violation of the First Amendment.

Third, they allege that the order violates the Procedural Due Process Clause of the Fifth Amendment.[3] The complaint states that Congress has established procedures and rights for non-citizens who enter and are in the county.[3] It claims that Sections 3 and 5 attempt to circumvent these procedures.[3] The states assert that by simply revoking visas, freezing the immigration process, and denying entry, he is denying the right of due process that noncitizens are entitled to under the Fifth Amendment.

Fourth, the complaint alleges that the order violates the Immigration and Nationality Act by use of discriminatory visa procedures.[3] This act prohibits discrimination in the issuance of visas on the basis of race, nationality, place of birth, or residence.[3] Again, the states allege that Sections 3 and 5, taken together with Trump’s anti-Islamic comments, show an intent to create a policy that would discriminate against Muslims in visa issuance.

Fifth, the complaint contends that the order violates the Immigration and Nationality Act by denying asylum and withholding of removal.[3] This act allows noncitizens entering this country to seek asylum and withhold of removal.[3] Similar to asylum, “withhold of removal” grants noncitizens protection from deportation if they can show convincing evidence that their lives would be threatened if they returned to their country based on race, religion, nationality, membership in particular social group, or political opinion.[5] The complaint states that the order suspends all immigrants from the seven specified countries from seeking asylum and withhold from removal, in violation of the Act.[3] Similar to the fourth cause of action, the states allege that the order denies noncitizens their right to seek asylum and withhold of removal. This puts their lives in danger if they should be forced to return to their countries of origin.

Sixth, the complaint alleges that the order violates the Foreign Affairs Reform and Restructuring Act.[3] This act implemented the United Nations Convention Against Torture, which the U.S. ratified in 1994 by prohibiting signatory nations from involuntarily returning people to a country where they are likely to be tortured.[3] The complaint holds that the order violates the Convention by preventing people from those seven countries from seeking protection against torture.[3] The States claim that by forcing immigrants — specifically Syrians — back to countries where torture is a reality, the defendant is unlawfully exposing them to a high risk of torture.

Seventh, the complaint asserts that the order violates the Religious Freedom Restoration Act, which prohibits the federal government from substantially burdening the exercise of religion.[3] The order places a burden on the exercise of religion by noncitizen immigrants by preventing their free exercise of religion while in detention, returning to their religious communities in their States, and taking planned religious travel.[3] The complaint also alleges that this order would burden individuals and religious groups that aid refugees in line with their beliefs.[3] This allegation is based on the above-mentioned hardships, such as visa freezes and travel bans, that are being placed on Muslims, the target of the order.

Eighth, the complaint holds that implementation of the order violates the Administrative Procedure Act.[3] This act requires federal agencies to conduct formal rule-making before engaging in actions that impact substantive rights.[3] The complaint alleges that federal agencies did not follow this required procedure before the order was executed, as the order impacts the substantive rights of noncitizens.[3] Here, the states allege that by unilaterally executing this order without going through the formal procedures in place, Trump has violated this act.

Ninth, the complaint holds that the order is a substantial violation of the Administrative Procedure Act, which prohibits federal agencies from taking action that is arbitrary, unconstitutional, and contrary to the statute.[3] By enacting Section 3 and 5 of the order, federal agencies have committed unlawful, arbitrary, and unconstitutional acts.[3] The states allege that because the order itself is unlawful, unconstitutional, and arbitrary for the reasons mentioned throughout the complaint, it violates the act and is therefore unenforceable.

The final cause of action holds that the order violates the Tenth Amendment.[3] The Tenth Amendment prohibits the federal government from compelling states to enact and enforce federal law.[3] The complaint alleges that sections of the act, taken into consideration with comments by the defendant, show an intent to force the states to enact discriminatory laws in violation of their own state constitutional protections against such discrimination.[3] The states allege that by attempting to compel individual states to follow this unlawful order, Trump is trying to violate their Tenth Amendment right to not follow such orders.

Hopefully, this information sheds some light on the legal arguments being asserted against Trump’s executive order. Visit the Washington Attorney General’s official website where other links to important documents may be found. The site also provides a link to the Ninth Circuit’s official website where you can hear oral arguments for this case. This is a paramount issue now facing our country, and conducting thorough research is important to staying informed as it develops.







[5] 3A C.J.S. Aliens § 1052

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