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Trump’s Travel Ban 3.0 : The Latest Version, Effective 10/18/2017

internationaltravelCan someone tell me the difference between an “executive order” and a “presidential proclamation”?  I don’t think I learned that in law school, and for sure it was not on the bar exam.  Frankly, before September 24, 2017, I would likely have used the phrases interchangeably.  And yet, as of September 24, 2017, many of my colleagues are wondering about the purported difference.

The definitions of “executive orders” and a “presidential proclamations”, including their differences, is not easy to express as the U.S. Constitution does not contain any provision referring to them.  The most widely cited explanation came in 1957 from the House Committee on Government Operations, which explained the difference as follows:

Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law . . . . In the narrower sense Executive orders and proclamations are written documents denoted as such . . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute. The President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance . . .[1] (Emphasis added.)

So why would the president’s first two efforts at a travel ban be in the form of “executive orders”, and his most recent effort be in the form of a “proclamation”?   Frankly, I’m not quite sure, but I suspect that whether the courts find Travel Ban 3.0 to be enforceable, either in part or in total, will turn more on its substance and not by whether it’s a presidential proclamation instead of an executive order.[2]

So, then, what’s the deal with Travel Ban 3.0?  The President’s proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats,” was issued by President Trump following a worldwide review of information sharing practices between the U.S. and nearly 200 foreign  countries.  The purported purpose was to assess whether nationals of each country seeking to enter the United States pose a national security or public safety threat to the United States. As a result of this review, eight (8) countries have been deemed to have inadequate identity management protocols, information sharing practices, and risk factors.  They are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  It was also determined that Iraq did not meet the baseline requirements, but nationals of Iraq will not be subject to an outright ban on travel, but rather will be subject to additional screening measures.

There are exemptions under the President’s proclamation, such as the travel restrictions do not apply to lawful permanent residents (i.e., Green Card holders) of those countries, and foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture. There are other exemptions as well.

There are also waivers available if a foreign national can demonstrate that (a) denying entry to the United States would cause the foreign national undue hardship, (b) entry would not pose a threat to the national security or public safety of the United States, and (c) entry would be in the national interest.

Not surprisingly, the anti-administration forces argue that this is yet another attempt by the President to further his discriminatory and anti-immigrant policies and does nothing to strengthen our national security. I tend to agree.

The new travel ban goes (or went, depending on when you’re reading this) into effect on October 18, 2017, but the ban is effective immediately for anyone whose entry to the U.S. was previously barred by the administration’s prior travel ban (Executive Order 13780 dated March 6, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”) (i.e., nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona fide relationship with a person or entity in the United States).

Also, until October 18, 2017, citizens of Iran, Libya, Somalia, Syria, and Yemen are exempt from the new travel ban if they have a “bona fide relationship” with a U.S. person or entity. (This is actually an issue in the courts at the moment.)

And finally, unless an exemption does apply or an individual is eligible for a waiver, the restrictions of Travel Ban 3.0 apply to individuals of the eight (8) designated countries who (a) are outside the U.S. on the applicable effective date, (b) do not have a valid visa on the applicable effective date, and (c) do not qualify for a reinstated visa or other travel document that was revoked under the President’s earlier travel ban (Executive Order 13769 dated January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”).

I have written before, and no doubt will do so again, that immigrants and refugees contribute in a positive way to our nation by strengthening our local businesses, communities, and national economy. Travel Ban 3.0 will do little more than simply harm families, negatively impact our business community, and undermine our national values.

 

[1] Staff of House Committee on Government Operations, 85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957).

[2] Both executive orders and proclamations have the force of law, akin to regulations issued by federal agencies, so they are codified under Title 3 of the Code of Federal Regulations (“CFR”), the CFR being the formal collection of all of the rules and regulations issued by the executive branch and the federal agencies.  Neither executive orders nor proclamations are legislation, however.  Neither require approval from Congress, and Congress cannot overturn them. On the other hand, Congress can pass legislation that can make it difficult, or even impossible, to carry out an executive order or presidential proclamation.  Nevertheless, only a sitting President can overturn an executive order or proclamation by issuing another executive order or proclamation to that effect.

Super Bowl Ads Rebuke Xenophobia and Sexism

dreamstime_s_44860969Two years ago, Coca-Cola’s 60 second Super Bowl advertisement featuring people singing a multilingual version of “America the Beautiful” sparked a national discussion of immigration and diversity.  (Click here to read my comments in response to the bigotry that followed that ad. )  Is it any surprise, given the moment of history we’re living in, that Coca-Cola decided to dust it off for Super Bowl LI and run it again?

And they weren’t the only ones who ran a political advertisement in the Super Bowl. Airbnb, the community marketplace for people to list, discover, and book accommodations around the world, ran an advertisement that promoted its view of an open, multicultural world, reflecting its commitment to housing refugees. “We believe no matter who you are, where you’re from, who you love, or who you worship, we all belong. The world is more beautiful the more you accept.” A hashtag at the end of it read #WeAccept, and it went viral on social media by halftime of the game.

84 Lumber, a Pittsburgh-based national building supply chain, ran an advertisement that was so controversial that Fox wouldn’t air the complete version of it. (It’s available here and worth a look.) It featured a Spanish-speaking mother and daughter making a grueling trek across Mexico in search of a better life. Apparently the depiction of the mother and daughter confronting a border wall between the United States and Mexico was “too controversial.”

Budweiser’s Super Bowl advertisement featured the journey that Adolphus Busch made from Germany to St. Louis in the 1800’s and the discrimination he overcame on his way to success. Unbelievably, the hashtag #BoycottBudweiser trended earlier in the game (the advertisement had been running for days before the game). Later on, however, that same hashtag was being used by others to defend Budweiser and mock the boycotters.

And then there was Audi. Audi’s advertisement advocated equal pay for women. Narrated by a father asking questions about what to tell his young daughter one day as she competed in a go-cart race, he said, “Do I tell her that despite her education, her drive, her skills, her intelligence, she will automatically be valued as less than every man she ever meets?” The young girl won the race, and her father remarked that maybe he will be able to “tell her something different.” The advertisement ends with Audi of America’s statement that it is “committed to equal pay for equal work.”

We are living in an unprecedented moment in history. The Super Bowl is without question the biggest day of the year for advertisers. And in this moment of history, companies did not shy away from calling out President Trump and his politics (even if none specifically used his name), offering up loud rebukes against xenophobia and sexism.

Let me remind everyone that we are a nation born of immigrants. The President’s election, and his recent actions on immigration and other issues, has divided our country. Advertisers paid $5 million for 30 seconds of air time to reach more than 110 million viewers. I think they were very successful. Let’s hope their messages were loud and clear to Washington.

Day 6 : Trump Signs Executive Orders Targeting Illegal Immigration

BorderSecurityImageHot off the press. Today, President Trump issued two (2) executive orders relating to immigration, one on border security (e.g., calling for the construction of a wall along the U.S.-Mexico border, etc.) and one on interior enforcement (e.g., including various provisions relating to enforcement of United States immigration laws, including withholding federal grant money from sanctuary cities).

Like President Obama before him (who he all so often criticized for using executive actions to enforce our immigration law), President Trump is using executive actions to enact these new immigration policies. (Thus far, there have been no changes announced as to President Obama’s Deferred Action for Childhood Arrivals (“DACA”) program.)

Here’s a high-level overview of what we know.

1. Southern Border Wall. The President announced that the United States will construct a wall along our U.S. – Mexico border, based apparently on authority under the Secure Fence Act of 2006 signed into law by President George W. Bush (which called for 700 miles of “reinforced fencing” along the U.S. – Mexico border, along with enhanced surveillance systems). At this point, there are just rumors as to how this will be paid for.

2. Detention for Illegal Entry. The President is seeking new policy guidance for all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the Immigration and Nationality Act, including the termination of the practice commonly known as “catch and release” (whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law).

3. Curbing Funding to Sanctuary Cities. The President’s executive orders also seek to end Sanctuary Cities by stripping grant funding for those cities.

4. Temporarily Halting Refugee Admissions. The President is seeking a 120-day pause in refugee admissions to the United States, with the exception of those fleeing religious persecution if their religion is a minority in their country of nationality.

5. Banning Foreign Nationals from Certain Muslim-Majority Countries. The President is banning entry into the United States for at least thirty (30) days all immigrant and nonimmigrant nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. He also may require that all applicants from those countries (and perhaps others) demonstrate that he or she is not a security or public-safety threat to the United States.

6. Uniform Screening for Immigration Benefits. The President announced that there will be added requirements to screenings and procedures for all immigration benefits to identify fraud and to apparently detect an applicants’ intent to do harm. (Perhaps this is the “extreme vetting” we heard so much of on the campaign trail.) The President is also suspending the Visa Interview Waiver Program, essentially requiring all visa applicants to attend a visa interview, unless they are otherwise exempt from doing so under the law.

This is obviously a fluid situation, so I will endeavor to update this as appropriate.

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