by Jonathan Hafetz
[Jonathan Hafetz is Professor of Law at Seton Hall University School of Law.]
President Trump’s recent executive order temporarily barring the entry of refugees and others has provoked widespread protests, inflicted unnecessary suffering, and undermined the United States’ reputation across the world. Several district judges have temporarily blocked its enforcement, at minimum preserving the status quo (by halting the removal of individuals who had traveled to the United States) until the legal challenges can be resolved. The most recent ruling, issued by a federal judge in Los Angeles, went as far as to enjoin the federal government from denying entry into the United States to holders of valid immigrant visas from countries covered by Trump’s order. I believe Trump’s order violates the U.S. Constitution, as I’ve briefly described here and Adam Cox has discussed at length here. It also transgresses international law. And while the international law violations may not alone trigger the order’s invalidation by a federal judges, they strengthen the domestic law challenges—statutory and constitutional—to the order.
Trump’s order suspends entry of all refugees to the United States for 120 days, bars Syrian refugees indefinitely, and blocks entry into the United States for 90 days of citizens from seven predominantly Muslim countries. The Trump administration (via Department of Homeland Secretary John Kelly) subsequently sought to clarify that legal permanent residents (LPRs) from those seven countries were not categorically banned but would instead be issued waivers on a case-by-case basis. A more recent White House “clarification” states that the order will not apply to any LPRs. How much weight judges will accord these post hoc damage control efforts is another question, particularly given the continuing evidence of the order’s arbitrary enforcement and Trump’s own proven disregard for facts and for the truth. Further, this clarification does not address claims by non-LPRs.
The order contravenes the 1951 Refugee Convention and 1967 Protocol by discriminating among refugees based on religion and country of origin. The ban also violates applicable human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which prohibits non-discrimination across a broad range of state action, including entry decisions, and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which bars racial and religious discrimination in immigration decisions. (See Jay Shooster’s excellent post here). Further, as Shooster notes, both the ICCPR and CERD prohibit laws with discriminatory effects and thus do not require proof of intent (although there is ample evidence of discriminatory intent behind Trump’s executive order, as noted below). For example, a 2004 decision by the UN Human Rights Committee interprets the ICCPR’s anti-discrimination prohibition to encompasses action that has an “exclusive and disproportionate effect on a certain category of persons.”
The federal court rulings thus far show Trump’s order is vulnerable to anti-discrimination challenges based on national origin and religion. The Trump administration’s claim that the order is not directed at Muslims is undercut by Trump’s repeated statements openly expressing disfavor of Muslims. Indeed, in signing the order, Trump vowed to “keep radical Islamic terrorists out of the United States.” And Rudy Giuliani stated that Trump wanted a “Muslim ban” and asked him to assemble a commission to show him “the right way to do it legally.”
Because the relevant treaties are non-self-executing, their bite in litigation over the executive order will be in their interaction with domestic law. One statutory argument some petitioners will advance is that the executive order violates section 202(a) of the Immigration and Nationality Act (INA). Enacted in 1965—and motivated by a long history of discrimination in immigration law—this provision bars discrimination in “the issuance of an immigrant visa” based, inter alia, on nationality, place of birth, or place of residence. International law bolsters claims that section 202(a) should be interpreted to prohibit the type of national origin discrimination imposed by Trump’s order against those seeking permanent residence status.
The Trump administration is relying heavily on section 212(f) of the INA, which allows the president to suspend entry of any class of aliens where it would be “detrimental to the interests of the United States.” But, although broad, this grant of authority should prove vulnerable where, as James C. Hathaway notes, there is no “serious data linking refugees to a terrorist threat” and where the evidence instead points to religious animus as the motivating factor. Here again, non-discrimination provisions under international law will reinforce construction of federal law against the order’s validity.
International law also supports constitutional challenges, particularly the claim that removal without judicial review violates the Due Process Clause of the Fifth Amendment. Under the Refugee Convention and international human rights law, individuals have a right apply for asylum, cannot be removed to a country where they face a risk of torture or persecution, and are entitled to a determination on their claims. Federal law implements these non-refoulement obligations by providing for individualized determinations and judicial review. A categorical ban that denies those fleeing persecution the opportunity to seek relief and review—as required under international law and provided for by federal statute—violates due process.
While constitutional arguments will remain front and center, the order’s incompatibility with international law—not to mention with U.S. international interests—should magnify judicial skepticism about the expansive readings of the plenary power doctrine and executive authority that Trump will advance in defending the order.