President Trump’s revised executive order, commonly referred to as the travel ban, will be reviewed by a federal appeals court on Monday afternoon.
The case, International Refugee Assistance v Trump, is centered on a battle between presidential authority and the rights of foreigners to travel to the United States.
The Fourth Circuit Court of Appeals in Virginia will decide if the travel order violates the First or Fourteenth amendments to the Constitution or the anti-discrimination section of the Immigration and Nationality Act. [Listen live to oral arguments]
The Constitution does not usually apply to non-U.S. citizens on foreign soil. But a professor of immigration law at Fordham University Law School told Forbes that the First Amendment’s Establishment Clause does apply to the federal government. “I’m not arguing the Constitution gives each person a right to enter,” said Jennifer Gordon. But “when the U.S. government establishes a preferred religion, it violates the Constitution.”
The plaintiffs say that the president’s order is blatant religious discrimination since the six countries involved have mostly Muslim populations: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Refugee groups will find using the Fourteenth amendments’ Equal Protection clause much tougher. The clause states that “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” As the refugees are not within any state’s jurisdiction it will be difficult to argue that the clause applies to them.
The anti-discrimination section of the Immigration and Nationality Act (INA) will apply. But it will face direct opposition from its own language. The law, passed in 1952, contains a provision in section 212(f) laying out presidential authority.
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, 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.
INA was amended in 1965 to add the anti-discrimination provision that reads, “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.”
The anti-discrimination provision was enacted later than the original INA so the doctrine of implied repeal may apply. When an Act of Congress conflicts with an earlier one, implied repeal dictates that the later prevails and the earlier is repealed. Implied repeal won’t come into play unless the court is unable or unwilling to reconcile the two provisions with a reasonable interpretation.
The travel order will also be decided on in the Ninth Circuit Court of Appeals at a later date.