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How Does President Trump's Executive Order Alter Our Immigration Travel Policy?

January 31, 2017

After President Obama signed an executive order suspending the intake of refugees from Syria and halting travel into the U.S. from seven majority Muslim countries,  public reaction to the orders was swift and decisive with protesters descending on airports across the nation and civil rights lawyers rushing to court. WGBH Morning Edition host Bob Seay interviewed WGBH Legal Analyst Daniel Medwed, a Professor of law at Northeastern University, about  the legal battled that ensued in the aftermath of the action. Below is a loosely editing transcription of the conversation.

Bob Seay: Joining me now to discuss the current status of all the litigation involving the executive order and how those cases may unfold as WGBH legal analyst and Northeastern law professor Daniel Medwed. Good morning to you.

Daniel Medwed: Good morning, Bob.

BS: First of all how did President Trump's executive order precisely alter our immigration and travel policy?

DM: There seem to be three chief features. First and foremost, there's the travel ban a ban on entry for people from seven majority Muslim countries the Sudan, Somalia, Syria, Yemen, Libya, Iran, and Iraq for a 90-day period. The plain language of that order would seem to encompass lawful permanent residents and green card holders, but the White House backtracked from that position yesterday, indicating that people in those categories would simply experience secondary or additional screening. Second, the order halted our refugee admissions program for 120 days, and third, it pinpointed Syrian refugees as "detrimental" to the interests of the United States.

BS: Over the weekend civil rights lawyers filed a spate of suits in federal courts in New York and Massachusetts. Pennsylvania, Virginia, and Washington to stop the implementation of the order. Could you tell us about this litigation and its impact especially the New York case?

DM: These cases typically sought what's called a stay or habeas corpus relief. First, a stay is when you ask courts to stop the executive branch from pursuing a particular course of action. The classic example in the death penalty context when lawyers seek a stay of execution to spare their client lethal injection. Habeas corpus relief is more extensive. It's when you ask the courts to demand the executive branch not only to stop something but to act affirmatively to release people who are being unlawfully detained. In New York on Saturday night…the ACLU procured a stay from a federal district court judge in Brooklyn, Ann Donnelly, who barred the Custom and Border Patrol from deporting many lawful permanent residents who had been detained at JFK and suggested that the government could not deport anyone with a valid immigration visa or valid refugee status.

BS: What about the case here in Boston?

DM: Our local ACLU chapter and a couple of allies sought both a stay and habeas corpus relief from two federal judges, Allison Burroughs and Judith Dine, over at the Moakley courthouse in South Boston. The judges complied with that request. And what's notable about that decision is that the judge has barred the government from deporting two Iranian nationals, UMass Dartmouth law professors, and lawful permanent residents but also required that they not be detained. It's arguably the most robust decision coming out of this weekend.

BS: Well we have a presidential executive order and we have challenges from lawyers. What happens next?

DM: Well it's a little hard to say Monday morning what the Trump administration may do as the sun rises. Possibly they will appeal these orders in the circuit courts that cover New York and Boston. But as these cases stand now the New York case is scheduled for further proceedings in mid-February. I believe the government must file a brief on or by February 10th…the Boston case only has a seven-day window. That's the length of the injunction issued by those two federal judges. So, we may see some hearings at the end of the weekend.

BS: How do you see this all eventually playing out?

DM: It's going to go to the Supreme Court perhaps sooner rather than later. Now there are a number of statutory and constitutional challenges. First, there's an equal protection claim that this order targets people based on nation of origin. And there are a lot of cases saying that you can't do that. Second, there could be a due process claim arguing that certain immigrants, especially those with strong ties to the United States are being deprived of their liberty without adequate process, and lastly, perhaps most interestingly, there's an Establishment Clause claim here that this violates the principle of separation of church and state because the order itself indicates that it will give preferential treatment to members of minority religions, i.e. Christians.

BS: Well now we still have just eight members of the court so how do you think the Supreme Court will rule?

DM: Well if I had to read the tea leaves I think it's going to go 6-2 against the executive order. The four liberal justices, Justices Kagan Breyer, Bader Ginsburg, and Sotomayor are probably drafting their opinions right now on their breakfast napkins. Justice Kennedy, I think will side with them. He's a big proponent of religious liberty and the architect of the same sex marriage case in 2015. I also think Chief Justice Roberts will side with this group not as a matter of principle but because he is a firm believer in stari decisis case precedent.

BS: Now a question for you in terms of precedent...anything like this has ever happened before this kind of confrontation?

DM: I am not aware of one in recent memory. It's fair to say, as some have said, that we may be facing a constitutional crisis depending on whether the executive branch does honor these judicial orders. One hopes that they will honor these judicial orders. There are reports of border officials not necessarily complying with the federal judge's orders. Whether that's by happenstance or for some other reason remains to be seen. But it is unprecedented.

BS: It certainly will be fascinating to watch it all unfold. Thank you so much Daniel. That's WGBH legal analyst a Northeastern law Professor Daniel Medwed.


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