Author:Barrow, Jennifer Lee

Waging relentless and barbaric genocide against minority religious groups in Syria and Iraq, (1) ISIS (2) has murdered, (3) raped, (4) and kidnapped (5) Yazidis and Christians, among others. Almost 90% of Iraq's Mandean population has been killed or displaced, and only a fourth of the (1700)-year-old Christian population remains. (6) Citing religious persecution (7) and security concerns presented by terrorist groups, (8) in January 2017 President Trump issued the controversial Executive Order 13,769, "Protecting the Nation From Foreign Terrorist Entry Into the United States" (the "Original Order"). Section Three of the Original Order banned the entry of nationals from Iraq, Iran, Sudan, Libya, Somalia, Syria and Yemen for 90 days. (9) In Section Five, the Original Order indefinitely postponed the admission of Syrian refugees, (10) gave preference to "refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality," (11) and suspended the Refugee Admissions Program for 120 days. (12)

The Original Order sparked debate over whether such provisions were within the statutory and constitutional authority of the President of the United States, and whether they violated the Establishment Clause of the First Amendment. A few days after President Trump signed the Original Order, the States of Washington and Minnesota challenged it in the United States District Court for the Western District of Washington. (13) Judge James Robart ruled in favor of the challengers, and issued a nationwide injunction against enforcement of the Original Order. (14) During the President's subsequent motion to stay in the Ninth Circuit, the parties put forward many of the best arguments for and against the Original Order's legality. (15) Ultimately, however, the Ninth Circuit denied the motion to stay Judge Robart's ruling. (16)

President Trump rescinded and replaced the Original Order in March 2017. (17) Executive Order 13,780 (the "Revised Order") kept the 90-day ban for six of the original countries, but removed Iraq; (18) kept the 120-day suspension of refugees, but removed the indefinite ban on Syrian refugees; (19) specified that the Revised Order is inapplicable to lawful permanent residents, (20) persons with valid visas on the effective date of the Original Order (21) or the Revised Order, (22) or refugees scheduled for travel to the United States before the effective date of the Revised Order; (23) authorized the Secretary of State and Secretary of Homeland Security to jointly make case-by-case exceptions to the refugee suspension (24) and consular officials to make exceptions to the travel restrictions; (25) and eliminated (but defended (26)) the provision giving preference to members of minority religions. (27) In June 2017, the Supreme Court--taking up two new challenges to the Revised Order--ordered a partial stay, holding that the Revised Order could only be enforced against foreign nationals "who can[not] credibly claim a bona fide relationship with a person or entity in the United States." (28)

This Note will explore the contours of the debate over the validity of the Original Order, and argue that the Original Order was lawful, but a poor policy choice. The first part of this Note argues that the Original Order was within the lawful constitutional and statutory authority of the President of the United States and did not violate the Establishment Clause of the First Amendment. The second part of this Note, however, argues that giving preference to individual refugees on the condition that the "religion of the individual is a minority religion in the individual's country of nationality" is a poor policy choice, reflecting an oversimplification of and common misconception of religious persecution. Determining whether a refugee has a suitable country of refuge closer to him than the United States, and prioritizing refugees accordingly, could be a more effective way of stopping religious persecution.


    This part first provides an evaluation of who had standing to challenge the order. Next, it argues that the Immigration and Nationality Act provided statutory authority for the President's Order. This part concludes by explaining why the Original Order did not violate the Establishment Clause or the Religious Freedom Restoration Act.

    1. Standing

      A preliminary question is whether anyone had standing to challenge the constitutionality of the Original Order. The Ninth Circuit held that the States of Washington and Minnesota had standing to challenge the Original Order under third-party standing doctrine, because the Supreme Court has held that schools may vindicate the rights of their students (29) and no one has challenged that state universities are branches of the state. (30)

      This is problematic, however, because the doctrine presumes that the third party is vindicating rights that another party actually has. The Ninth Circuit cited precedent that the Fifth Amendment's Due Process Clause "appl[ies] to all 'persons' within the United States, including aliens," and "certain aliens attempting to reenter the United States after traveling abroad." (31) Yet aliens seeking initial admission to the United States enjoy no constitutional rights regarding their application. (32) In addition to aliens attempting to reenter, the court identified refugees and "applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert" as potential groups on behalf of which the States could assert due process rights. (33) The Ninth Circuit reasoned that some of the foreign nationals prevented from entering the country will be barred from being students, faculty, or researchers at state universities, and that some will not be able to return if they leave. (34) Washington alleged that two prospective visiting scholars, three prospective employees, and two interns from countries covered by the Executive Order were unable to enter the United States. (35) The Ninth Circuit held that these injuries gave the States standing (36) without finding that any specific, university-affiliated, foreign national had been in the country previously, was a refugee, or had "a relationship with a U.S. resident or an institution that might have rights of its own to assert." (37) The court merely asserted that "the existence of such persons is obvious." (38)

      Reasoning that the universities have standing, because they are asserting the constitutional rights of people whose constitutional rights are based on their relationship with a university, which possesses its own constitutional rights, would be circular. As mentioned previously, aliens seeking initial admission have no recognized constitutional rights. Universities cannot assert the constitutional rights of people who have no constitutional rights. Thus, the finding of standing did not meet the standard the court itself gave.

    2. Statutory Authority

      Even if a plaintiff had standing to challenge the Original Order, it was nonetheless authorized by existing statutory law. The Constitution gives the President the authority to "take Care that the Laws be faithfully executed." (39) The Original Order cited the Immigration and Nationality Act of 1952 for authority:

      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 immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. (40) The State of Washington, however, alleged that the Original Order violated Section 1152 of the Immigration and Nationality Act of 1965, which provides:

      Except as specifically provided in paragraph (2) and in sections 101(a)(27), 201(b)(2)(A)(i), and 203 [8 U.S.C. [section][section] 1101 (a)(27), 1151(b)(2)(A)(i), 1153], no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence. (41) It should be noted at the outset that this statute does not prohibit religious discrimination, so this is only a challenge to Section Three of the Original Order (42) barring entry based on nationality) and the portion of Section Five postponing indefinitely the admission of Syrian refugees. (43) The statute has no bearing on the portion of Section Five that gave preference to religious minorities. (44)

      Preliminarily, it is problematic that the States of Washington and Minnesota made a Section 1152 challenge on behalf of a state university's potential visiting scholars, faculty, researchers, employees, interns, and students. Section 1152 only prohibits discrimination in the issuance of immigration visas. It seems likely that most, if not all, of the foreign nationals in the categories represented by the states would be applying for nonimmigration visas, such as student visas (45) or employment visas. (46)

      In any event, historical practice, (47) statutory context, and the canons of construction all refute the states' argument. Historically, President Donald Trump is not the first United States president to stop all immigration from a particular country. Even after the passage of the Immigration and Nationality Act of 1965, President Jimmy Carter invalidated the visas of all Iranian citizens during the Iranian Hostage Crisis. (48) Similarly, President Ronald Reagan halted all immigration from Cuba, with certain exceptions for relatives of U.S. citizens and other preferred immigrants. (49)

      Other portions of the Immigration and Nationality Act of 1965 expressly discriminate on the basis of...

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