By Todd P. Photopulos
A federal appeals court on Thursday, Feb. 9 unanimously ruled against President Trump’s controversial “travel ban” executive order that attempted to bar foreign nationals from a list of seven countries from entering the U.S. for 90 days. Those countries include Iran, Iraq, Yemen, Libya, Sudan, Syria, and Somalia, although the Executive Order anticipated a reviewing period to add others.
The executive order was issued Friday, Jan. 27 without warning and resulted in significant travel interruptions for people caught in transit, or attempting to obtain visas from U.S. consulates abroad. Members of these seven countries currently residing in the U.S. were left wondering when or if they could safely depart from and return to the U.S. The executive order also lacked specific guidance to the various agencies responsible for issuing visas and controlling access to the U.S. borders, creating significant concern and confusion for the international community with U.S. interests.
As part of their executive power, presidents may issue executive orders to direct officers and agencies of the federal government, provided the orders derive from statute or the Constitution. Lawful Executive Orders have the full force of law. Trump issued this executive order under the premise that a temporary travel ban from these seven countries was a necessary exercise of the president’s power to prevent immigration of individuals that would do harm to the U.S.
Over the last two weeks, challenges to Trump’s executive order were filed in several courts throughout the U.S., resulting in one federal judge in the state of Washington issuing a temporary restraining (TRO) order blocking its enforcement. A TRO is not a final order, but merely a temporary block to hold the status quo until a full hearing can be held on the merits of the case. For the administration, however, the TRO was significant since the travel ban was only for a 90 day period.
The Trump administration quickly sought an emergency appeal to the Ninth Circuit Court of Appeals. As a reviewing court, the Ninth Circuit was limited to considering the evidence presented to the trial court below. The three appellate-judge panel focused on the federal government’s lack of proof to the trial court that any citizen of the seven named countries had engaged in acts of terrorism, rejecting the federal government’s argument that the order was not reviewable by the courts. The court also rejected arguments that the Obama administration’s prior designation that the seven countries were possible hotbeds of terrorism constituted adequate proof that an actual risk existed to warrant the deprivation of travel by affected individuals.
What happens next is undecided. Trump has tweeted an indication that he would seek review by the U.S. Supreme Court, which is currently short one justice and locked in 4-4 ideological tie on most issues. Under the U.S. Supreme Court rules, however, the review could be limited to one Justice – Justice Anthony Kennedy – although most analysts agree that Justice Kennedy would likely defer to the current eight member panel due to the sensitivity of the topic.
The Trump administration could choose to return back to the trial court and seek a full hearing on the merits, where it might better develop the record and attempt to cure the defects of proof outlined by the Ninth Circuit. Or the administration could “go back to the drawing board” and issue a new, perhaps better-constructed to address security concerns in the U.S. immigration system.
What does this mean for the international community with U.S. interests? Over the past few weeks we have had many clients travel from countries outside the seven listed in the executive order, and universally all have reported little to no issues at the U.S. border. Several commented that it was the smoothest entry they have had to the U.S., leading some to suspect that U.S. border agents were perhaps acting on their “best behavior” in light of the handful of protestors in international airport terminals.
The larger question may be what direction the U.S. government will take toward immigration policy over the next few years. Policy directives such as the travel ban and other Executive Orders signal an era of increased compliance, meaning visa applications are likely to receive greater scrutiny, particularly in the short term.
Changes to popular visa programs are also likely, with proposed legislation being introduced for popular visa categories such as the H-1b visa program (used mostly by degreed international professionals for temporary work in specialty occupations such as physicians or IT workers) and investor visa categories utilized by international entrepreneurs.
U.S. companies will most likely see an increase in workplace enforcement actions to ensure compliance with U.S. immigration laws, with one Executive Order directing the hiring of 10,000 additional agents to monitor and audit U.S. businesses.
One thing is for certain, though. The new administration will favor immigration policies that promote U.S. security interests and job growth for U.S. workers through investment into manufacturing and other sectors, while balancing the protections of the U.S. labor market from perceived dilution of wages through foreign labor.
» Law Elevated is a column on the latest trends, issues and perspectives facing the legal industry, written by associates of Butler | Snow. For more information, visit www.butlersnow.com or follow Butler | Snow on Twitter @Butler_Snow.