Trump’s firing of acting attorney general ups ante on immigration order

The stakes around President Trump’s executive order on immigration have been raised with the firing Monday evening of the acting attorney general who ordered the Justice Department not to defend the order, in a question of its legality.

Sally Yates, the acting attorney general, wrote in a letter to department lawyers that she was concerned that the executive order might not be legal. She instructed the department’s lawyers to not defend the Trump order in court because it is not consistent with the “institution’s solemn obligation to always seek justice…”

In response, she was swiftly relieved of her duties by President Trump, and replaced as interim attorney general by Dana Boente, U.S. Attorney for the Eastern District of Virginia. Boente said, “I will defend and enforce the laws of our country to ensure that our people and our nation are protected.”

{mosads}Protests erupted across the U.S. in response to the Friday rollout of the order that: banned entry for 90 days of nationals from seven predominantly Muslim countries: Syria, Iraq, Iran, Sudan, Libya, Somalia, and Yemen; indefinitely suspended resettlement of Syrian refugees; and, suspended all other refugee resettlement for 120 days.

While hundreds of incoming refugees, visitors, and permanent residents were detained at U.S. airports, four federal judges halted the order, making the stay nationwide; the Department of Homeland Security tailored the order to exempt green card holders, and said it would “comply” with the courts.

As a matter of policy, the negative reaction was swift. Without advance warning, U.S. Customs and Border Protection began to detain non-citizens at U.S. airports and hours of legal limbo followed. In the confusion, authorized travelers were detained and sixteen attorneys general vowed legal action. Iraq, an ally in the fight against ISIS, questioned why it was on the list; a State Department “dissent channel” memo said the action was “counter to core American values.”

But the legal underpinnings of a challenge to the order are not quite as clear. The four stays imposed nationwide injunctions on aspects of the order but none of those stays dealt with the legality of the order. The Department of Homeland Security said it would both comply with judicial orders and implement Trump’s executive order.

Is the ban legal and can a challenge succeed?

Unraveling the complex web of immigration law is not easy. The U.S. legal system, based on the Constitution and rulings by the Supreme Court has, historically, given broad and plenary authority to the president on immigration. Challenges to the president’s immigration authority have lost in the Supreme Court.

In 1993, George H.W. Bush, during a mass migration of Haitians, issued an executive order to permit the U. S. Coast Guard to begin returning Haitians picked up at sea directly to Haiti, following a large surge in Haitian boat people seeking to enter the United States.

The order was challenged in the courts on the basis of federal law and a treaty. In Sale v. Haitian Centers Council, the U.S. Supreme Court held for the president.

In a complicated decision, the Court left the U.S. law and the treaty in place, but made the point that under federal law: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrant or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

The current legal challenges will thus have an uphill battle, and will likely be based on the following authorities:

• The Immigration & Nationality Act of 1965: This federal legislation bans discrimination on the basis of race, nationality and ancestry. The Hart-Cellar Act, amended the INA, abolished the national origins quota system, and created a preference system based on family relationships and immigrant skills;

• The Establishment Clause of the First Amendment: This clause prohibits government actions that favor one religion over another. The key Supreme Court case here is Larson v. Valente (1982), which states that one religion cannot be preferred over another;

• The Due Process & Equal Protection Clauses of the Constitution;

• The Refugee Convention: Although the Convention has been upheld by the Supreme Court, the Trump Order mandates a pause, not a ban, and therefore may not be seen by the courts as violating the Convention.

The key to the challenge will be whether or not the travel ban is one based on a de facto religion-based ban and a de jure nationality ban: groups challenging the ban say it is; Trump says it is not.

The terms of the order establish preferential treatment for refugees identified with “minority religions” in their country of origin and does not specifically mention “Christianity” or any other religious minority. Trump insists this is not a “Muslim” ban. New York Attorney General Eric Schneiderman thinks it is, and says that the religious minorities of the seven countries can be discerned by connecting the dots. Anthony Romero, the Executive Director of the American Civil Liberties Union agrees, “This was a Muslim ban wrapped in a paper-thin national-security rationale.”

A long court challenge is likely to follow. Whether it is legal or not, the administration has gambled that it is good policy, one that is being challenged vigorously and vociferously in the court of public opinion — and perhaps, in Congress.  

Pamela Falk, former staff director of a House of Representatives Subcommittee, is CBS News TV & Radio Foreign Affairs Analyst & U.N. Resident Correspondent and holds a J.D. from Columbia School of Law.  She can be reached at @PamelaFalk

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