Simone Lawson
In 2017, President Trump signed Executive Order 13769, banning people from several Muslim-majority countries and suspending the US Refugee Admissions Program. This order was superseded by Executive Order 13780, which was temporarily blocked by a restraining order on the grounds that it was a 'Muslim ban' and violated the Establishment Clause. The refugee ban has been criticised as discriminatory and inhumane, and some legal experts argue that states do not have the constitutional power to exclude refugees from their territories. The Supreme Court's decision to overturn the block on the ban has been met with resistance from organisations such as the ACLU, who have filed lawsuits challenging the ban's legality.
| Characteristics | Values |
|---|---|
| People banned from entering the USA | People from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen |
| Number of countries | Six or seven Muslim-majority countries |
| Ban duration | 90 days |
| US refugee resettlement program suspension | 120 days |
| Maximum number of refugees | Reduced from 110,000 to 50,000 |
| USRAP suspension | Indefinite |
| Syrian refugees banned | Indefinite |
| People allowed to enter the USA | People from the seven countries who had been authorized to travel, along with vetted refugees from all nations |
| People impacted | Refugees, visa applicants, green-card holders, students on F1 visas |
| People opposing the ban | Democrats, including Senate minority leader Charles Schumer, senators Bernie Sanders and Kamala Harris, former US secretaries of state Madeleine Albright and Hillary Clinton, and former president Barack Obama |
| People supporting the ban | Speaker of the House Paul Ryan, senior White House adviser Stephen Miller |
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What You'll Learn
- The US Constitution grants federal, not state, power to control immigration laws
- The ban breaks the Establishment Clause by acting as a Muslim ban
- The ban prevents refugees from getting drivers' licenses or accessing state services
- The ban affects those with F1 visas, preventing them from seeing their families
- The ban is a license to discriminate, disguised as a national security measure
The US Constitution grants federal, not state, power to control immigration laws
The Constitution's grant of power to the federal government is further supported by the Refugee Act of 1980, which provides a protocol for accepting refugees. This act outlines the process for refugee admissions and resettlement, with the involvement of designated Cabinet-level representatives of the President and members of the Judiciary Committees of the Senate and House of Representatives.
Despite this, there have been instances where states have objected to the federal government's refugee resettlement plans. For example, in 2015, more than two dozen governors opposed the federal plan to accept Syrian refugees. However, legal experts argue that states have limited power in this area and that any attempts to block refugees could be seen as unconstitutional.
In recent years, the Trump administration's executive orders have significantly reduced refugee admissions and implemented controversial travel bans targeting Muslim-majority countries. These orders have faced legal challenges and temporary restraining orders, with critics arguing that they are discriminatory and violate international law. The Biden administration has since worked to rebound resettlement numbers.
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The ban breaks the Establishment Clause by acting as a Muslim ban
The Trump administration's refugee ban, also known as Executive Order 13769, was challenged by the American Civil Liberties Union (ACLU) and other partner organisations as a violation of the Establishment Clause of the First Amendment. This clause forbids government favouritism of one religion over another, and so it provides a natural source for a constitutional claim.
The ban, which blocked people from seven Muslim-majority countries from entering the USA, was labelled the "Muslim ban" by Trump himself and his supporters and critics alike. The Establishment Clause challenge has gained greater traction than other provisions invoked by plaintiffs challenging the ban, as it is structural in a way that various rights provisions might not be. This means that the Establishment Clause applies to actions taken by the government outside of the United States.
The ACLU has argued that the ban is not merely permitting a private party to take actions that bear on the Establishment Clause, but that the ban is the policy of the government itself. The ban sends a powerful message that Muslims are disfavoured and would be effective in telling Muslims that they should not openly practice their religion in America. This was supported by the ruling of United States District Judge Derrick Watson, who stated that the balance of equities and public interests justified granting the plaintiffs relief.
The Establishment Clause challenge to the ban has been further supported by Justice Kennedy's concurrence in Kerry v. Din, which stated that a showing of bad faith in the denial of a visa should be enough to invalidate a government reason for that denial. This would be true whether the bad faith was that of a consular officer or the government acting en masse via executive order. Thus, the plaintiffs would have a strong argument over the applicability of the Constitution, even if they were not relying on a structural provision.
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The ban prevents refugees from getting drivers' licenses or accessing state services
The United States Constitution does not grant states the power to ban refugees from their territories. However, states can refuse to participate in efforts to place refugees in their communities and create barriers for them, such as preventing them from obtaining driver's licenses or accessing certain state services.
While states cannot directly ban refugees, they can make it difficult for them to reside within their borders by limiting access to essential services and documentation. This can create significant challenges for refugees, impacting their ability to integrate, find employment, and access necessary resources.
Some states, like Utah, have implemented specific processes for refugees and asylum seekers to obtain limited-term driver's licenses. These licenses are typically valid for five years or until the expiration of the individual's legal presence document, whichever comes sooner. To obtain this license, individuals must provide acceptable proof of their status as a refugee or approved asylee and meet certain requirements, such as passing written and driving exams.
However, other states may not have such accommodating policies, and refugees could face significant obstacles in obtaining driver's licenses or accessing state services. This can hinder their ability to navigate their new communities, find employment, and access essential services, such as healthcare and education.
The federal government primarily controls immigration policies and laws in the United States, as interpreted from Article 1, Section 8, Clauses 3 and 4 of the Constitution. This was further clarified in the 1941 Supreme Court decision, Hines v. Davidowitz, which addressed conflicts between federal and state jurisdiction in immigration matters.
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The ban affects those with F1 visas, preventing them from seeing their families
The F-1 visa is the most common type of visa used by international students. It is for international students who are pursuing a full academic degree at an accredited US college or university, or studying English at a university or intensive English language institute. F-1 visas are only valid for one entry into the United States, meaning that if the visa holder leaves the country, they may not be able to return. This has been a cause for concern for students who may not be able to see their families for several years, especially if their parents cannot enter the United States due to the ban.
The ban in question, Executive Order 13769, was issued by President Trump on January 27, 2017, and was in effect until March 6, 2017. Commonly referred to as the "Muslim ban" or "Muslim travel ban", the order lowered the number of refugees to be admitted into the United States in 2017 to 50,000, suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, and indefinitely suspended the entry of Syrian refugees. The order also suspended entry into the U.S. for people from seven countries for 90 days and placed limitations on the acceptance of refugees.
The constitutionality of the ban was challenged in court, with a temporary restraining order (TRO) issued by United States District Judge Derrick Watson preventing the order from going into effect. Judge Watson ruled that the State of Hawaii showed a strong likelihood of success on their Establishment Clause claim, asserting that the order was indeed a "Muslim ban". The TRO blocked the executive branch from enforcing the provisions of the executive order that suspended entry and placed limitations on refugee acceptance.
While the ban was in effect, it had significant impacts on those with F-1 visas, as they were unable to leave the country without risking being unable to return. This meant that students on F-1 visas were effectively prevented from seeing their families, particularly those who may have been from the banned countries or had family members who were unable to enter the United States due to the ban.
The issue of states banning refugees has been a topic of debate, with legal experts generally agreeing that states do not have the constitutional power to exclude anyone from their territories. However, states can pose barriers and create obstacles for refugees, such as blocking access to certain services or requiring additional documentation. Ultimately, the power to control immigration policies and laws lies with the federal government, as interpreted from Article 1, Section 8, Clauses 3 and 4 of the Constitution.
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The ban is a license to discriminate, disguised as a national security measure
The Trump administration's refugee ban, also known as the "Muslim ban", is a clear violation of the US Constitution and a license to discriminate against a religious minority, disguised as a national security measure. This ban, enforced through Executive Order 13769, directly contradicts the Establishment Clause, as ruled by United States District Judge Derrick Watson. The order was designed to prevent people from seven Muslim-majority countries from entering the US and to limit refugee admissions, particularly targeting Syrian refugees.
The ban not only goes against the long-standing leadership of the United States in resettling refugees but also the bipartisan support that resettlement has historically received. The Trump administration's actions have drastically reduced the number of refugees entering the country, with the lowest numbers seen in the four-year period from 2017 to 2020. This reduction in refugee admissions undercuts the Refugee Act of 1980, which outlined a protocol for accepting refugees.
Furthermore, the ban disproportionately affects those who have already experienced persecution and human rights abuses in their home countries, such as torture and mass murder. By preventing refugees from entering the US, the ban effectively denies them the opportunity to reunite with their families and seek safety. The Trump administration's justifications for the ban, based on vague and questionable national security concerns, do not outweigh the constitutional and human rights that are being infringed upon.
The discriminatory nature of the ban is evident in its targeting of specific countries and the arbitrary definition of "close" family ties, which has resulted in grandparents, cousins, and other relatives being separated from their loved ones. The ban also contradicts the constitutional interpretation of Article 1, Section 8, Clauses 3 and 4, which grants the federal government, not the states, the power to control immigration policies and laws. This interpretation was affirmed by the Supreme Court in the 1941 Hines v. Davidowitz decision, which addressed conflicts between federal and state jurisdiction.
In conclusion, the refugee ban enacted by the Trump administration is a clear abuse of power and a license to discriminate against a religious minority. It violates the US Constitution, federal statutes, and international law, and it undermines the United States' commitment to protecting vulnerable refugees.
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Frequently asked questions
The refugee ban refers to Executive Order 13769, titled "Protecting the Nation from Foreign Terrorist Entry into the United States," which was signed by President Trump in 2017. The order banned people from several Muslim-majority countries from entering the USA and lowered the number of refugees to be admitted into the country.
The refugee ban, also known as the "Muslim ban," was found to violate the Establishment Clause of the United States Constitution. The ban was seen as discriminatory and a license to discriminate against vulnerable individuals seeking refuge from persecution and human rights abuses.
The refugee ban had significant impacts on those seeking refuge in the United States. It prevented families from being reunited and blocked individuals from seeking safety from torture, warlords, and dictators. Additionally, it reduced the number of refugees admitted into the country, with only 118,202 refugees resettled in the US between 2017 and 2020, the lowest in any four-year period since the creation of the US refugee program.
