Yesterday, Friday, a Federal District Court in Seattle issued a Temporary Oder overturning President Trump’s Executive Order which had temporarily banned visas from seven Muslim countries and halted the refugee program. Two states, Washington and Minnesota, filed a request for this Temporary Restraining Order (TRO). It is not clear from the Order what the basis was for their request, but, most likely, it was the idea that the Executive Order is unconstitutional in some way.
A Temporary Restraining Order is issued when the need for the Order is so great that there isn’t time to wait until a full hearing. A permanent Order can only be issued after a full hearing with evidence. On Friday, there was, basically, just an argument, without real evidence, before the Court, and the two states, Washington and Minnesota, apparently succeeded in convincing the Judge that 1) they would probably win at the full hearing and 2) that they would suffer irreparable harm if the Executive Order is not overturned immediately pending the full evidence hearing. This is the standard procedure for obtaining a TRO and there is nothing unusual here.
I don’t like the Executive Order. I think it was implemented hastily without careful thought, and, in my opinion, I think it is doing more harm than good. And, consequently, I am glad that it will not be in effect.
However, I am not at all convinced that this Court is correct that it most likely violates the law. I do not think that the Executive Order is unconstitutional. The heightened protections of our Constitution apply to US Citizens and permanent residents — not to non-citizen non-residents. There are lesser protections that may apply to non-residents, but I don’t think that those are relevant to this discussion. And the heightened Consitutional protections especially don’t apply to people outside our country. Furthermore, as I said in my last posting, I don’t think that this Executive Order, at least as it is written, discriminates against any religion.
The court order also forbids the part of the Executive Order that states that preference will be given to minority religions. I think that is completely wrong. Our refugee policy has always picked and chosen what nationality or religious group was going to get our primary assistance. Under Reagan, we made a priority of assisting Armenians, Soviet Jews and Russian Baptists and Pentecostals. We have prioritized Muslims from Sarajevo. More recently, we have been prioritizing Syrian Muslims and Christians and Muslims from Burma. I really don’t think that this decision was based on a careful consideration of the relevant governing law.
Finally, will this court order be overturned? Will the Executive Order come back into force? I think it is unlikely. I think that the Judge who entered this order has already made up his mind — and so I don’t think there is likely to be any change after evidence is presented. And, if it is appealed, it will go up to the 9th Circuit — the judges who oversee Federal cases in California, Oregon and Washington. Their decisions are usually consistently on the liberal side of the law — so they most likely will side with the lower court. And, if it is appealed to the Supreme Court, which could take a long time, at this point, the Supreme Court is evenly balanced between liberals and (mostly) conservatives — and a tie will “affirm” the decision of the Ninth Circuit. Of course, if Trump can get a conservative on the Supreme Court, then it might come out differently.
So, who knows, but I think that the Executive Order is dead for now. I am glad that it is not in force. But I wish it was withdrawn in a reasoned legal manner, rather than in an Order which, in my opinion, does not follow the law.
How does this affect people who want to travel to the US from those seven countries and how does it affect Refugees? Currently, things will continue much as they were going before. People can now come and go freely as long as they have a visa. It is not certain what will happen for the, I think, 60,000 people who had their visas canceled. I think that they will probably need to reapply for a visa.
It is important to keep in mind that if a person is from one of the seven countries, this TRO is temporary. It may be ended at any time after a hearing or after an appeal. In that case, the Executive Order may come back into force. So, if a person from one of those countries wants to come to the US, they had better come as soon as they can. I suspect that President Trump will be appealing this as soon as possible, so we may be hearing that the Executive Order is back in force in just a few days or few weeks.
I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consulate an attorney if you think any of this may apply to your situation.