1. CONSTITUTIONAL ISSUES ASSOCIATED WITH PRESIDENT TRUMP’S “TRAVEL BAN”
A Presentation for World Without Genocide
By Prof. Anthony S. Winer
Mitchell Hamline School of Law
August 30, 2017

2. Executive Order No. 13769 (January 27, 2017).
Had these effects, among others:
Barred entry of aliens from 7 countries for 90 days
(Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen).
Reduced number of refugees to be admitted in 2017
from 110,000 to 50,000.
Barred indefinitely the entry of Syrian refugees.
Ordered 120-day suspension of U.S. Refugee Admissions
Program.
Ordered Secretary of State to prioritize refugee claims by
individuals on the basis of religion-based persecution
when that was a minority religion in their home country.

3. Executive Order No. 13780 (March 6, 2017).
Was very similar to the first order, except for certain
nominal modifications:
- There were 6 countries, not 7; Iraq was removed.
The 90-day exclusion didn’t apply to resident
legal aliens
The 90-day ban didn’t apply to anyone who had
validly obtained a visa prior to the effective date of
the first order; those persons would not be barred entry.
The second order does not include the indefinite
ban on Syrian refugees
The second order does not contain the
distinction favoring Christian refugees

4. Statements during campaign and shortly after election
December 7, 2015: Candidate Trump’s “Statement on
Preventing Muslim Immigration” called for “a total and complete
shutdown of Muslims entering the U.S. until our representatives can
figure out what is going on.”
March 9, 2016: In an interview, Candidate Trump said:
“Islam hates us,” and “We can’t allow people coming into this
country who have this hatred.”
July 17, 2016: In response to a tweet criticizing immigration bans
for Muslims, Candidate Trump said: “So you call it territories. OK?
We’re gonna do territories.”
July 24, 2016: In response to a question about whether he was rolling back his Muslim ban, Candidate Trump said: “People are so upset when I use the word Muslim, [so I am] talking territory instead of Muslim.”

5. December 21, 2016: Upon being asked whether recent
Statements, continued
December 21, 2016: Upon being asked whether recent
attacks in Europe affected his proposed Muslim ban,
President-elect Trump said: “You know my plans. All along,
I’ve proven to be right. 100% correct.”
January 27, 2017: As President Trump was signing the
first order, he read out the title (“Protection of the Nation
from Foreign Terrorist Entry into the United States”), and
then said: “We all know what that means.”
January 28, 2017: Former NYC Mayor Rudy Giuliani said
that President Trump said that “when [Trump] first
announced it, he said ‘Muslim ban.’ He called me up.
He said, ‘Put a commission together. Show me the right way
to do it legally.’”

6. POSSIBLE CONSTITUTIONAL ISSUE ONE: Standing
As a result of the government action complained of,
the plaintiff must have:
“- suffered an invasion of a legally protected interest
- that is concrete and particularized
- and actual or imminent,
- not conjectural or hypothetical.”
- Spokeo v. Robins, 136 S. Ct. 1540, 1548 (2016).

7. POSSIBLE CONSTITUTIONAL ISSUE TWO:
Establishment Clause
To avoid invalidation of a government act under the
Establishment Clause, the government must show:
- That the challenged action has a secular legislative purpose;
- That its principal or primary effect is one that neither
advances nor inhibits religion; and
- That it does not foster an excessive government
Entanglement with religion.
- Lemon v. Kurtzman, 403 U.S. 602, (1971)

8. POSSIBLE CONSTITUTIONAL ISSUE THREE:
Establishment Clause
“Under the ‘Endorsement Test,’ any endorsement of religion is
Invalid, because it ‘sends a message to non-adherents that
they are outsiders, not full members of the political
community, and an accompanying message to adherents that
they are insiders, favored members of the political
community.’”
- Allegheny County v. ACLU, 492 U.S. 573 (1989).

9. POSSIBLE CONSTITUTIONAL ISSUE FOUR:
Separation of Powers
INA § 212(f), 8 U.S.C. § 1182(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, or impose on the entry of aliens any
restrictions he may deem to be appropriate.”
[emphasis added]

10. Exec. Order No. 13780, § 2(c): The President proclaims
that the unrestricted entry into the U.S. of nationals of the
six states would be “detrimental to the interests of the
United States,” asserting that the restrictions are necessary:
- To temporarily reduce investigative burdens on relevant
agencies during the review period [prescribed by the
Executive Order];
- To ensure the proper review and maximum utilization
available resources for the screening and vetting of foreign
nationals;
- To ensure that adequate standards are established to
prevent infiltration by foreign terrorists; and
- In light of the national security concerns referenced in
the Executive Order.