Immigration, Politics

How President Trump Should Fashion His New Immigration Order

How to survive constitutional scrutiny with a revised order.

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(Photo by Andrew Harrer - Pool/Getty Images)

(Photo by Andrew Harrer – Pool/Getty Images)

The politicized and liberal Ninth Circuit erred in enjoining President Donald Trump’s executive order, which temporarily barred immigration from seven countries. Nevertheless, Trump is wise to issue a new order that would conform to the Ninth Circuit’s standards.

Since the old order was struck down because of how it applied to a narrow class of individuals affected by the order, the new order will retain much of the old order, and it will assuage the government’s national security concerns as the old order makes its way through the courts.

But what should the new order look like? What should it say to ensure that it withstands the undoubted legal challenges soon to follow?

Below is an explanation of the Ninth Circuit’s 29-page opinion and a proposed new executive order, which ought to pass constitutional muster. This article intends not to rebut the Ninth Circuit’s flawed logic but to incorporate it as best as possible into a new executive order that should withstand scrutiny.

The Ninth Circuit upheld the temporary restraining order (TRO) on Trump’s old order because it found that the government was unlikely to succeed on the merits of the claim. It focused on three areas: (1) Due Process; (2) The First Amendment; and (3) the government’s security evidence.

Due Process

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Due Process rights are embedded in the Fifth Amendment of the Constitution, which states, “No person… [shall] be deprived of life, liberty, or property, without due process of law….” Due process, as cited by the Ninth Circuit, is essentially “notice and an opportunity to respond” to the government’s deprivation of life, liberty, or property.

Now, as a preliminary matter, it is important to consider whether immigrants affected by Trump’s order even have constitutional rights and thus Due Process rights.

It is best to think of constitutional rights as applying differently depending on a person’s legal status. Consider the following three groups (1) U.S. Citizens and Legal Permanent Residents (LPRs); (2) Illegal Immigrants on American soil; and (3) Illegal Immigrants outside of the country.

Constitutional rights apply on a sliding scale with (1) receiving the full panoply of rights and (3) receiving basically no rights at all with the Court in Landon v. Plasencia saying, “an alien seeking initial admission has no constitutional rights regarding his application….” Category (2) — illegal immigrants on American soil — has a limited degree of Due Process rights.

The Ninth Circuit struck down Trump’s order primarily because it impinged on the rights of (1) and (2). Trump’s order initially denied some LPRs reentry to the U.S., which is unacceptable since LPRs have full rights.

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Trump’s White House Counsel clarified that the order ought not apply to LPRs, but the Ninth Circuit nevertheless stated, “The White House counsel is not the President…. [and] we cannot say that the current interpretation by White House counsel… will persist past the immediate stage of these proceedings.”

The Ninth Circuit went on to say that even if the deprivation of Due Process was corrected with regard to group (1), there would still be problems in three discrete scenarios where there may be Due Process deprivation: (a) non-immigrant visaholders who were in the U.S. but leave temporarily; (b) applicants with a relationship to a U.S. resident; and (c) category two mentioned above, illegal immigrants on U.S. soil.

Now, while I have qualms with many of these categories, President Trump ought to transcribe the Ninth Circuit’s words verbatim into his new executive order. He should ensure that category (1) is explicitly exempt from the order, along with groups (a)-(c).

This would still leave a huge chunk of his order in place, subjecting virtually all of category (3) — illegal immigrants outside of the U.S. to the demands of the order.

First Amendment

The First Amendment bars “law[s] respecting an establishment of religion.” The states that brought a legal challenge against Trump’s order maintain that Trump violated the First Amendment because he intended to bar Muslims, not just citizens from the seven countries listed. The claim is ludicrous, for one because more than four dozen Muslim-majorities are exempt from the order and secondly because Obama himself designated the same seven countries as terror-prone.

Perhaps the weakness of the states’ argument is why the Ninth Circuit stated, “we reserve consideration of these [First Amendment] claims until the merits of this appeal have been fully briefed.” Even though the Court said plainly that they are not ruling on these claims, Trump’s new order should clearly state its security-based rationale and consider removing the provision that prioritizes persecuted religious minorities in the refugee process. Though this provision should ultimately withstand legal scrutiny, its exclusion would ensure the new order is not temporarily enjoined like the old.

Cognizable Threat

Finally, in addition to citing Due Process and First Amendment concerns, the three judges of the Ninth Circuit pushed the Department of Justice attorneys  on what exactly was their security rationale in implementing the old order.

In balancing the hardships and the public interest before upholding the TRO, the Ninth Circuit said that “[t]he Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” There have been attacks from immigrants originating from some of the designated countries, and Trump’s new order ought to state that evidence as well as the future security concerns it has.

New Order

In sum, Trump’s new order ought to make three pivotal changes: (1) it should create precise exemptions from the order based on Due Process rights, using the Ninth Circuit’s exact language; (2) it should state its security rationale and potentially exclude the persecuted religious minority provision; and (3) it should list evidence for why it selected these seven terror prone country.

Ultimately, even the Ninth Circuit admitted: “courts owe considerable deference to the President’s policy determinations with respect to immigration and national security.” While the Ninth Circuit did not show appropriate deference in temporarily enjoining Trump’s old order, a new order that is finely tuned should all but ensure that the Ninth Circuit rules appropriately.

kayleigh-mcenany-2017Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown University’s School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.

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