Update on the Status of the Executive Order on Refugees

In an effort to resolve legal problems identified by the U.S. Court of Appeals for the 9th Circuit in issuing a nationwide injunction against the enforcement of an Executive Order issued January 27, the Administration issued a second Executive Order, also titled "Protecting the Nation from Foreign Terrorist Entry in the United States," on March 6. It was scheduled to take effect on March 16, 2017, at which time its predecessor would be revoked. Both Executive Orders sought, among other things, to:

  1. Bar the entry to the United States of nationals of six predominantly Muslim nations (Syria, Iran, Somalia, Sudan, Libya, Yemen -- the initial Executive Order also covered Iraq) for 90 days.

  2. Suspend the entry to the United States of all refugees for 120 days.

  3. Reduce by more than half the number of refugees admitted for FY 2017 (110,000 to 50,000).

The first Executive Order prompted litigation in various federal courts challenging the Executive Order on both statutory (the Immigration and Nationalization Act) and constitutional (due process, establishment clause, and equal protection) grounds, and asking those courts to temporarily prohibit enforcement until the merits of those challenges could be addressed. A federal judge in the state of Washington -- in a suit subsequently joined by the states of Minnesota, Pennsylvania, Massachusetts, New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and District of Columbia -- did issue a nationwide injunction, largely on establishment clause grounds (religious discrimination). That ruling was upheld by the United States Court of Appeals for the 9th Circuit. Rather than appeal, the Administration issued another Executive Order attempting to fix the problems identified by the 9th Circuit.

In turn, the second Executive Order prompted new litigation, and federal courts in Hawaii, Maryland, and Washington heard argument on the eve of anticipated implementation. The Hawaii court, also largely on establishment clause grounds, issued a nationwide injunction on March 15 prohibiting enforcement of all three major provisions indicated above. The Maryland court issued a nationwide injunction prohibiting enforcement only of the travel ban. The Washington court -- given that Hawaii is part of the 9th Circuit -- reserved judgment at this time. Both ruling courts relied heavily on statements made by candidate Trump and by his senior advisers that the intention of the orders is, indeed, to establish "a Muslim ban."

The Department of Justice has filed a notice of appeal with the United States Court of Appeals for the 4th Circuit with reference to the Maryland decision; it has yet to do so in the 9th Circuit with respect to the Hawaii decision.

As a consequence, the three primary provisions of the Executive Order are barred from implementation nationwide. The Multifaith Alliance for Syrian Refugees is committed to the integrity of the U.S. refugee program and will continue to keep you posted of continuing developments.

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