On September 24, 2017, President Donald Trump issued a proclamation captioned "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats" (EO-3). In EO-3, the administration established new travel restrictions, which followed up on two separate executive orders, both captioned "Protecting The Nation From Foreign Terrorist Entry Into The United States" (EO-1 and EO-2), which were issued in January and March 2017, respectively.
In section 2 of EO-3, the administration ordered that the following restrictions be placed on the entry into the United States of nationals of eight countries:
The entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of Iran as immigrants and as nonimmigrants be suspended, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements.
The entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of North Korea as immigrants and nonimmigrants be suspended.
The entry into the United States of nationals of Syria as immigrants and nonimmigrants be suspended.
The entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures -- including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations -- and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended. It also ordered that nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current.
The entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of Somalia as immigrants be suspended. In addition, it ordered that visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.
On October 10, 2017, plaintiffs who had previously challenged EO-2 in the U.S. District Court for the District of Hawaii, joined by two unnamed "John Does", filed a Motion for Leave to File a Third Amended Complaint with the federal district court judge who originally heard that case, Judge Derrick Watson, to challenge EO-3.
On October 17, 2017, Judge Watson issued a blanket temporary restraining order enjoining the Department of Homeland Security and Department of State "from enforcing or implementing" the sections of EO-3 that restricted the entry into the United States of nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia under the conditions set forth above.
The president had relied on sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) in setting forth the restrictions in section 2 of EO-3. Section 212(f) of the INA states, in pertinent part:
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.
Section 215(a)(1) of the INA provides: "Unless otherwise ordered by the President, it shall be unlawful- (1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe." Taken together, pursuant to these two provisions, Congress gave the president exceptional authority to prevent the entry of an alien or an identified class of aliens into the United States.
But that's not enough, according to Judge Watson. In his decision, Judge Watson determined that the president had exceeded his authority under sections 212(f) and 215(a) INA in issuing those restrictions in EO-3. As the court held:
The actions taken by the President in the challenged sections of EO-3 require him to "first [] make sufficient findings that the entry of nationals from the six designated countries ... would be detrimental to the interests of the United States." Because the President has not satisfied this precondition in the manner described by the Ninth Circuit before exercising his delegated authority, Plaintiffs have demonstrated a likelihood of success on the merits of their claim that the President exceeded his authority under sections [212(f) and 212(a) of the INA].
He further concluded that EO-3 "plainly violates Section [202(a)(1)(A) of the INA] by singling out immigrant visa applicants seeking entry to the United States on the basis of nationality."
Pursuant to that section of the INA, with limited exceptions, "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." Accordingly, Judge Watson concluded that the plaintiffs had "shown a likelihood of success on the merits of their claim that EO-3 exceeds the restriction of Section [202](a)(1)(A) of the INA] and the overall statutory scheme intended by Congress."
As it pertains to this latter aspect of Judge Watson's order, National Review senior writer David French put it best when he explained:
Judge Watson claims that Trump's order violates the Immigration and Nationality Act's prohibitions against "nationality-based discrimination." But this is specious. The order singles out nations for different treatment not because, say, Yemenis are inherently dangerous but rather because their government — through acts or omissions that their government can correct — places American national security at risk. In other words, the problem isn't their nationality but rather the political conditions in their country — conditions that create an unacceptable risk to national security.
To understand the full implications of Judge Watson's order as it relates to sections 212(f) and 215(a) of the INA, on the other hand, it is important to understand the purposes of EO-3. The proclamation itself is intended to "protect the security and interests of the United States and its people". It resulted from a review by the secretary of Homeland Security, in consultation with the secretary of State and the director of National Intelligence, in which she:
[D]eveloped a baseline for the kinds of information required from foreign governments to support the United States Government's ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat.
In essence, the information required under that baseline relates to both the front and back ends of the immigration process: that is whether the United States could rely on documents and information provided by an alien's home country in identifying aliens seeking entry into the United States and in determining whether those aliens posed a danger to this country; whether those countries are safe havens for terrorists; and whether the United States could remove those aliens back home if they were ordered removed.
Judge Watson concluded that the president lacks the authority to perform these essential tasks in the manner set forth in EO-3, finding instead that "the categorical restrictions on entire populations of men, women, and children, based upon nationality, are a poor fit for the issues regarding the sharing of 'public-safety and terrorism-related information' that the president identifies." Such public safety issues are exactly the sort of national security concerns to which the judicial branch usually defers to the executive. But not Judge Watson.
Interestingly, in footnote 15, Judge Watson contends that:
"[T]he only concrete evidence to emerge from the Administration on [a link between an alien's nationality and the alien's propensity to commit terrorism or the alien's inherent dangerousness] ... to date has shown just the opposite — that country-based bans are ineffective. A leaked DHS Office of Intelligence and Analysis memorandum analyzing the ban in EO-1 found that 'country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.'"
This ignores, however, as the Ninth Circuit noted in its decision on EO-2 that:
The same day [EO-2] was issued, Attorney General Jefferson B. Sessions III and Secretary of Homeland Security John F. Kelly submitted a letter to the President recommending that he "direct[] a temporary pause in entry" from countries that are "unable or unwilling to provide the United States with adequate information about their nationals" or are designated as "state sponsors of terrorism."
More significantly, it also ignores the fact that if the United States cannot rely on documentation presented by the nationals of the specific country, or access information from such national's home country, it cannot assess either a foreign national's identity or the danger that a foreign national poses at all. By contrast, consider me, or any other citizen or national of the United States.
My birth was recorded in a reliable state government database, the United States government possesses my full employment history (both through my Social Security records and my government employment record), and, because I have been a government employee, it has copies of my fingerprints, which are linked to my identity. If I had committed any criminal offenses, that information would be recorded by the state in which I committed those offenses, and would have been forwarded to a federal database.
The United States government issued me a secure, biometric passport, which contains numerous security features. To obtain that passport, I had to provide my personal and biographical information, which allowed the Department of State to verify my identity and fitness to carry that passport, in part by accessing the databases described above. Therefore, if I were to apply for a visa from a foreign country, that foreign country could verify my identity and obtain sufficient information to assess whether I would pose a danger to that country.
The countries in question either cannot or will not provide such information to the United States government, or the conditions in those countries are such that even a bona fide holder of one of those countries' passports cannot be screened adequately for security risks. Those are the purposes of EO-3, but Judge Watson's order frustrates those purposes. The Justice Department has vowed to appeal that order "in an expeditious manner." Given the stakes, it should do so.