On March 6, 2017, President Trump issued an executive order entitled “Protecting The Nation From Foreign Terrorist Entry Into the United States” in which he ordered a “temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers.” The March 6 executive order was careful to carve out exceptions for certain travelers, including lawful permanent resident of the United States, foreign nationals with certain non-visa documents (for example, advance parole or boarding foils), dual nationals traveling on a passport from a country not listed in the executive order, diplomats, and those granted asylum, withholding of removal, or protection under the Convention Against Torture.

The March 6 executive order was issued after the President’s January 27, 2017 executive order temporarily banning entry into the United States of citizens from seven countries was stopped by a temporary restraining order that was upheld by the Ninth Circuit Court of Appeals. While the March 6 order rescinded and replaced Trump’s previous January executive order on travel, the March 6 executive order was quickly stopped when a Federal court in Hawaii (later joined by Maryland) issued a nationwide temporary restraining order, which puts the implementation of the executive order on hold while a court determines its legality.

The temporary restraining order decision issued by a Federal district court judge in Hawaii went as far as to note “a reasonable, objective observer . . .would conclude that the Executive Order was issued with a purpose to disfavor a particular religion[.]” Attorneys for the Department of Justice, who are arguing in support of the executive order, state that the purpose of the order is national security reasons, well within the purview of the President.  It’s the government’s position that the six countries mentioned in the executive order are state sponsors of terrorism.

While the executive order itself does not state that the travel ban is based on religious grounds, courts can and did look back in time to Trump as a candidate in order to give context to the executive order and the policy behind it. The temporary restraining order decision in Hawaii notes previous interviews that Trump gave as a candidate (In March 2016, Mr. Trump said, during an interview, “I think Islam hates us,” and later stated, “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, ‘It’s called extreme vetting.’”). Because such a policy would violate the Constitution’s Establishment clause (often referred to as the separation of religion and state), the executive order would therefore be unconstitutional.  The Hawaiian Federal court determined that, while the  constitutionality of the executive order is determine, that its implementation is put on hold due to the damage it may cause until the court determines whether the order is constitutional.

What does the executive order mean for citizens from the six countries listed for the temporary pause on travel? For now, until a Federal court determines the legality of the executive order, the travel ban will not be implemented and citizens from all countries with valid visas should be able to board planes and enter the United States.

It’s unclear whether the Trump administration will continue to fight for this executive order in Court, or whether it will continue to refine its attempted travel ban through further executive orders. Until there is a decision on the merits of the constitutionality of the March 6 executive order, which is expected in the coming weeks, the travel ban has itself been banned by Federal courts, nationwide.

~Brian M. Doyle