If immigration ban goes to Supreme Court, Trump is shoo-in to win
© Getty

Two states challenged President Donald Trump’s executive order, Protecting the Nation from Foreign Terrorist Entry into the United States, in a U.S. District Court.  The District Court preliminarily ruled in their favor and temporarily enjoined enforcement of the order.  

The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for an emergency stay to reinstate the order while its appeal from the District Court’s decision proceeds.


The court denied the government’s motion because it was not convinced that the government is likely to prevail on the states’ due process claim when the case is adjudicated on its merits.  The court reserved consideration, however, on the states’ religious discrimination claim until the merits of the appeal have been fully briefed.


I have found no merit in the States arguments in support of either of those claims.

Due Process

The states claim that the order’s 90-day ban on admitting lawful permanent residents and non-immigrant visa holders from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen to the United States without notice and an opportunity to respond violates their right to due process under the Fifth Amendment of the Constitution.

But a visa does not guarantee entry into the United States.  It just allows an alien to travel to a United States port-of-entry and request permission to enter.

A lawful permanent resident alien normally is entitled to a hearing before an immigration judge if he is not permitted to re-enter the United States after a trip abroad.  It depends on why he is not allowed to re-enter.

Section 212(a) of the Immigration and Nationality Act (INA) lists classes of aliens who are ineligible for admission to the United States, and Section 240 requires a hearing before an immigration judge if an alien is charged with inadmissibility under section 212(a).

Section 240(a)(3) provides that, “Unless otherwise specified in this Act, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States….”

The 90-day suspension is based on Section 212(f), which gives the president authority to exclude aliens from the United States without regard to whether they are in one of the classes described by section 212(a).  

In other words, when entry is denied under section 212(f), the determination on admissibility is made by the president, not by an immigration judge.  

The pertinent part section 212(f) reads as follows:

“(f) 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….”

According to the Congressional Research Service, “Neither the text of Section 212(f) nor the case law to date suggests any firm legal limits upon the president’s exercise of his authority to exclude aliens under this provision.”  

It does not state even what the president should consider in determining whether the entry of an alien is “detrimental” to U.S. interests.

Religious Discrimination

According to the states, the order “was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a ‘Muslim ban’ as the president had stated during his presidential campaign that he would do.”  

The states claim that therefore the Order violates the Establishment and Equal Protection Clause of the Constitution.

While it is true that the countries subject to the 90-day suspension have large Muslim populations, this was not the basis for selecting them.  The order says:

“I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a) (12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order….”

Congress put Iraq and Syria on this list, and the Obama administration added Iran, Sudan, Libya, Somalia, and Yemen as “countries of concern.”  

Section 217(a)(12)(D) provides the criterion for designating a “country or area of concern” is a determination that:

  1. The “presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;”

  2. “A foreign terrorist organization has a significant presence in the country or area;” and

  3. “The country or area is a safe haven for terrorists.”

According to Harvard Law Professor Alan Dershowitz, the 90-day suspension does not violate the establishment clause.  President TrumpDonald TrumpDonald Trump Jr. calls Bruce Springsteen's dropped charges 'liberal privilege' Schiff sees challenges for intel committee, community in Trump's shadow McConnell says he'd back Trump as 2024 GOP nominee MORE picked countries that have high levels of terrorism.  When you focus on real perpetrators and the impact is heavily on one particular religion, that does not create a constitutional problem.

Although the government may have to take this case all the way to the Supreme Court, I will be surprised if the order is not upheld in the end.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

The views of contributors are their own and not the views of The Hill.