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Is Trump’s Executive Order a Legal Muslim Ban?

On Friday, 27th of January 2017, the newly admitted President of USA, Donald Trump, has signed an executive order, titled “Protection Of The Nation From Foreign Terrorist Entry Into The United States”. With the power of the order he has banned travellers that are not legal permanent US residents and come from seven Muslim-majority countries, Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen including the dual nationals, from entering the United States for duration of the following 90 days. The order has banned as well the admissions of all refugees for 120 days and admission of Syrian ones specifically for the indefinite period. Diplomat visas and the legal residents of the US are exempt according to the order.

Trump claims that his “extreme vetting system will help to keep the radical Islamic terrorists out of the US”. Moreover, he stated that his policy “is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months’ and that ‘the seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror”. However, even though the order gives the 9/11 attack as its rationale, the ban does not concern the nationalities of the hijackers, such as Saudi Arabia, the United Arab Emirates and Egypt. 

The ‘Muslim ban’, as the media named it, has by now caused a lot of emotions and turmoil already. The examplification can be the situation at JFK airport, where not only protesters have gathered in order to show their discontent and disagreement for the situation, but as well the lawyers trying to help the families of people stuck at the airports and not returned to their countries. On Saturday evening, a federal judge in Brooklyn issued an emergency stay, which ordered people stuck at the airports not be returned to their home countries, until their future is settled.

Following video captures well the atmosphere prevailing at JFK on last Saturday.

Even though Trump argues that the order is not a Muslim ban, it is not very different in its tendencies – it puts refugees, who are a religious minority in country of origin, therefore usually Christian in the Muslim majority countries, before the religious majority ones, Muslim. Aditionally, it even allows for consideration of admittance of non-muslim members of the states considered by the order. And it definitely is a foretaste of Trump’s ambition to ban Muslims from America, which he has repeatedly admitted to have. This argument can be supported with a fact that the total number of refugees admitted into the United States is going to be capped during the year 2017 from 110,000 to a number of 50,000.

There is as well a lot of legal doubts about the Trump’s order. According to the Immigration and Nationality Act of 1965, all discrimination against immigrants on the basis of national origin is banned. The order is therefore claimed to violate that Act. Moreover, it is claimed that the ban violates the right to due process guaranteed by the Fifth Amendment and one to the religious freedom granted by the First Amendment.

However, The President of the United States has a right to “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” if he “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”. According to Professor Spiro, no court has ever reversed a presidential order under this provision, however in terms of the number of prospective immigrants involved, this is the most significant use of that power by any American president.




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