Discrimination Against Refugees: the Limits of Presidential Authority Under International Law

• Publication year: 2017
• Author: By Richard Bainter*

Discrimination against Refugees: The Limits of Presidential Authority under International Law

By Richard Bainter*

I. INTRODUCTION

Several federal courts have already considered President Trump's two executive orders restricting entry into the United States by foreign nationals from seven, predominately Muslim, countries as well as the settlement of all refugees in the U.S. Much of the discussion about the legality of those orders has centered on U.S. constitutional law, specifically how the executive orders offend the Establishment Clause of the First Amendment and the Fifth Amendment guarantee of due process. Little attention has been paid to how the discrimination against refugees, which is explicit in the first executive order and made inevitable by the terms of the second, violates international law.¹

II. THE TRUMP TRAVEL BANS

President Trump signed Executive Order No. 13769 on January 27, 2017,² banning several categories of foreign nationals from entering the United States. Citizens of seven "countries of particular concern"³ were barred from entering the United States for a period of 90 days; the U.S. Refugee Assistance Program (USRAP) was suspended for 120 days; and the admission of Syrian refugees was suspended indefinitely.⁴ The legality of the executive order was immediately challenged in court and its implementation blocked by the U.S. District Court for the Western District of Washington.⁵ The Ninth Circuit Court of Appeals refused to stay the district court's order pending appeal.⁶ As a result of the injunction, the Trump administration carefully crafted a second executive order, which was signed on March 6, 2017, with an effective date of March 16, 2017.⁷ The revised executive order rescinded the first order and made substantive revisions to the travel restrictions that were initially imposed.

One of the changes made in the second order was an elimination of the indefinite ban on refugees from Syria. In its place, the second order instituted a temporary, 120-day ban on all refugees traveling to the U.S.⁸ The second order apparently recognized the questionable legality of the previous ban that targeted Syrian refugees for exclusion based solely on their country of origin. However, the second executive order clearly anticipated the possibility of future discrimination against refugees based on their country of origin and it appears to invite discrimination by state and local governments when refugees are again accepted into the U.S. after the 120-day ban. The second executive order was also enjoined by federal courts in Hawaii⁹ and Maryland.¹⁰

The focus of much of the legal opposition to both executive orders has been centered on U.S. constitutional law, specifically arguments about religious discrimination against, and denial of due process to, those affected by the executive orders.¹¹However, the U.S. District Court in Washington that initially blocked the enforcement of the first executive order articulated no specific legal basis for its decision to prevent the enforcement of the ban on Syrian refugees.¹²

The Ninth Circuit decision that upheld the Washington District Court's temporary restraining order was based on the strength of the plaintiff's arguments for due process protection under the Fifth Amendment and did not address the Establishment Clause or religious discrimination issues that had formed the basis for the district court's decision. While the Court clearly articulated a rationale for protecting the due process rights of permanent residents and other aliens within the country, it also failed to articulate a legal basis for protecting Syrian refugees from the effects of the order.

The Federal District Court for the Eastern District of Virginia blocked the implementation and enforcement of section 3(c) of the first executive order, but only as it related to Virginia citizens and institutions.¹³ Section 3(c) of the order temporarily banned the entry into the United States of people from the seven countries of particular concern. The decision was based on the Court's determination that the Commonwealth of Virginia was likely to succeed on its Establishment Clause claims. However, the Commonwealth did not challenge the ban on entry of Syrian refugees and therefore the preliminary injunction did not affect that part of the executive order.

[Page 13]

Implementation and enforcement of the second executive order was also blocked, in whole or in part, by federal district courts in Maryland and Hawaii. The U.S. District Court for the District of Maryland blocked enforcement of the second executive order, but only for the section that temporarily suspended the issuance of visas to nationals of Libya, Yemen, Somalia, Iran, Sudan and Syria. That court refused to block implementation of the temporary ban on settlement of refugees in the United States. The Court stated that, "[a]lthough plaintiffs have argued that sections relating to the temporary ban on refugees also offend the Establishment Clause, they did not sufficiently develop that argument to warrant an injunction on those sections at this time."¹⁴

The order from the U.S. District Court in Hawaii was the first to clearly state a legal basis for blocking the enforcement of the refugee ban.¹⁵ The ruling was based on a finding that the plaintiffs were likely to prevail on their Establishment Clause claims.¹⁶However, the ruling of the Hawaii court does not uphold rights of refugees. Refugees seeking entry into the U.S. have no rights under the Constitution.¹⁷Instead, the part of the Hawaii ruling that benefits refugees is based on the First Amendment rights of the plaintiffs, the State of Hawaii and a Muslim U.S. citizen of Hawaii, who asserted that the entire executive order was motivated by animus toward Muslims and therefore violated the Establishment Clause of the First Amendment.¹⁸

The Ninth Circuit took a different view. It upheld the injunction against the second order, but not on constitutional grounds.¹⁹ Instead, it held that President Trump had exceeded the authority granted to the President by Congress in the Immigration and Nationality Act.²⁰ With regard to the temporary ban on travel of refugees to the United States, the Court held that the president had failed to make the statutorily required finding that the entry of refugees would be detrimental to the interests of the United States.²¹

The government applied for certiorari in both the Hawaii and Maryland cases. On June 26, 2017, the Supreme Court granted certiorari of both cases, consolidated them and partially upheld the injunctions entered by the lower courts.²² The Supreme Court only allowed the travel restrictions imposed by the second order to go into effect for the designated classes of aliens who have no "bona fide relationship to a person or entity in the United States." The government continues to be enjoined from enforcing the second order against any visa applicant from one of the six designated countries, or any refugee, with bona fide ties to the United States. There was no consideration of the merits of the cases. The Court ordered that the case be heard in the first session of the October Term 2017.²³

If ultimately successful, the constitutional arguments made by the various plaintiffs would primarily benefit permanent residents, visa holders, and visa applicants from the "countries of particular concern." U.S. constitutional challenges, however, are less likely to help the Syrian refugees targeted for exclusion in the first travel ban and other specific classes of refugees that are likely to be targeted through implementation of the second executive order. Refugees must to look to international law for protection from discrimination based on race, religion, or country of origin.

III. CONVENTION AND PROTOCOL RELATING TO THE STATUS OF REFUGEES

The Convention relating to the Status of Refugees (hereafter "the Convention") was drafted in 1951 to address the ongoing refugee crisis created by the Second World War.²⁴ Millions of people had been displaced during the war and millions more were displaced by political upheavals and the redrawing of national boundaries afterward. The Convention was initially signed by 19 countries, but was ultimately adhered to by 145 countries.²⁵ The original parties to the Convention were reluctant to make an open-ended commitment to protecting future populations of refugees.²⁶ As a result, its application was explicitly limited to people who had been displaced "as a result of events occurring prior to January 1, 1951" and primarily to those displaced within Europe.²⁷

The Convention established a single legal definition of a refugee, defined the legal rights and responsibilities of refugees and also defined the obligations toward refugees that were assumed by parties to the agreement.²⁸ The United States was a member of the conference responsible for drafting the Convention,²⁹ but was not a party to the Convention. U.S. political leaders at the time believed that U.S. refugee policy was the most liberal in the world and that the purpose of the Convention was to bring other countries, primarily the European countries where most of the post-war refugees were being sheltered, up to similar standards.³⁰

[Page 14]

In the years following its adoption, the broader international community recognized the value of the Convention in protecting and assisting refugees from the Second World War and chose to extend its terms to all future refugees. As a result, a Protocol to the Convention was drafted in 1967 (hereafter "the Protocol") to extend the key provisions of the Convention without temporal or geographic restrictions.³¹ The Protocol recognizes that "it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951."³² The Protocol specifically incorporates articles 2 through 34 of the Convention. Parties to the Protocol essentially become parties to the Convention but...