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Though Blocked for Now, Trump's Unconstitutional Muslim Ban Deserves Total Destruction

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From Common Dreams

On January 27, 2017, President Trump made good on his campaign promise to institute a ban on Muslims entering the US. Trump's executive order(EO) is titled "Protecting the Nation From Foreign Terrorist Entry Into the United States."

The EO bars nationals from seven Muslim-majority countries from the US for at least 90 days. They include Iraq, Iran, Libya, Syria, Somalia, Yemen, and Sudan. The EO also indefinitely prevents Syrian refugees, even those granted visas, from entering the US. And it suspends the resettlement of all refugees for 120 days.

None of the 9/11 hijackers came from the seven countries covered by the EO; 15 of the 19 men hailed from Saudi Arabia, which is not on the list. No one from the seven listed countries has mounted a fatal terrorist attack in the United States.

Countries exempted from the EO include Saudi Arabia, Pakistan, Egypt, Turkey, Lebanon and the United Arab Emirates -- countries where Trump apparently has business ties.

Trump's EO violates the Establishment Clause, the Due Process Clause, the Equal Protection Clause, and the Take Care Clause of the Constitution. It also violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as well as the International Covenant on Civil and Political Rights (ICCPR); both are treaties the United States has ratified, making them part of US law under the Constitution's Supremacy Clause. The EO violates the Immigration and Nationality Act as well.

Six Federal Courts Stay Trump's EO

In the face of legal challenges, six federal courts have temporarily stayed implementation of parts of the EO, indicating that petitioners have a strong likelihood of prevailing on the merits.

On January 28, US District Judge Ann Donnelly of the Eastern District of New York concluded that the petitioners "have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates Due Process and Equal Protection." She also found "imminent danger ... [of] substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the [EO]."

Donnelly thus enjoined respondents Trump, US Customs and Border Protection (CBP), Department of Homeland Security (DHS), et al, from removing anyone with refugee applications approved by US Citizenship and Immigration Services as part of the US Refugee Admissions Program. Holders of valid immigrant and non-immigrant visas, and other individuals from the seven listed countries who are legally authorized to enter the US, are also protected from removal by Donnelly's order.

In spite of Donnelly's order, CBP agents continued to detain immigrants at airports across the country and send them back, even though some could face persecution in their countries of origin.

On January 28, US District Judge Leonie Brinkema of the Eastern District of Virginia forbade respondents Trump et al, from removing the three Yemeni petitioners, who were lawful permanent residents being held at Dulles International Airport, for seven days from the issuance of her order. Brinkema further ordered CBP agents to permit attorneys access to all lawful permanent residents (green card holders) detained pursuant to the EO at Dulles International Airport pursuant.

Nevertheless, CBP agents refused to allow detained lawful permanent residents to consult with lawyers. On February 1, the Commonwealth of Virginia asked a federal judge to force Trump, CBP and other high government officials to show cause why they should not be held in contempt for refusing to obey a lawful court order.

On January 28, US District Judge Thomas Zilly of the Western District of Washington granted a stay of removal and enjoined respondents Trump et al, from removing John Does I and I from the US pending a hearing on February 3.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)

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