In challenges to Executive Order No. 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. Supreme Court grants writ of certiorari

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Date: April-June 2017
From: International Law Update(Vol. 23, Issue 2)
Publisher: American Bar Association
Document Type: Article
Length: 2,558 words
Lexile Measure: 1410L

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These cases involve challenges to Executive Order No. 13780, Protecting the Nation from Foreign Terrorist Entry Into the United States. Respondents challenged the order in two separate lawsuits. Among other directives, the order suspended entry of foreign nationals from seven countries identified as presenting heightened terrorism risks for 90 days. Executive officials were instructed to review the adequacy of current practices relating to visa adjudications during this 90-day period. EO-1 also modified refugee policy, suspending the United States Refugee Admissions Program (USRAP) for 120 days and reducing the number of refugees eligible to be admitted to the United States during fiscal year 2017. EO-1 was immediately challenged in court. Respondents obtained preliminary injunctions barring enforcement of several of its provisions, including the 90-day suspension of entry. The injunctions were upheld in large measure by the Courts of Appeals.

Rather than continue to litigate EO-1, the Government announced that it would revoke the order and issue a new one. A second order followed on March 6, 2017. EO-2 describes "conditions in six of the ... countries" as to which EO-1 had suspended entry, stating that these conditions "demonstrate [that] nationals [of those countries] continue to present heightened risks to the security of the United States," [section] 1(e), and that "some of those who have entered the United States through our immigration system have proved to be threats to our national security," [section] 1(h). EO-2 sets out a series of directives patterned on those found in EO-1. Several are relevant here and includes EO-2 directing the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about nationals applying for United States visas. Second, EO-2 directs that entry of nationals from six of the seven countries designated in EO-1 be "suspended for 90 days from the effective date" of the order. Third, EO-2 suspends "decisions on applications for refugee status" and "travel of refugees into the United States under the USRAP" for 120 days following its effective date. Fourth Citing the President's determination that "the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States,". Finally, [section] 14 of EO-2 establishes the order's effective date: March 16, 2017.

Respondents in these cases filed separate lawsuits challenging EO-2. As relevant, they argued that the order violates the Establishment Clause of the First Amendment because it was motivated not by concerns pertaining to national security, but by animus toward Islam. In No. 16-1436, a Federal District Court concluded that respondents were likely to succeed on their Establishment Clause claim with respect to [section] 2(c) of EO-2--the provision temporarily suspending entry from six countries-and entered a nationwide preliminary injunction barring the Government from enforcing [section] 2(c) against any foreign national seeking entry to the United States. These orders, entered before EO-2 went into effect, prevented the Government from initiating enforcement of the challenged provisions. The Government filed appeals in both cases. The Court of Appeals for the Fourth...

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Gale Document Number: GALE|A550996291