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USA, Trump and the Travel Ban

President Donald J. Trump
President Donald J. Trump

What is the Muslim Ban?

The Muslim Ban constitutes an order which prohibits, the citizens of seven Muslim majority countries, from entering the United States for a period of 90 days.[1] The seven countries banned include, Syria, Iraq, Iran, Yemen, Sudan, Somalia and Libya. It should be noted that the ban extends to the holders of dual nationality while at the same time diplomats from these counties are exempt.[2] When the Muslin ban came into existence, there was the impression for a while that it also applied to the green card holders.[3] However, it soon became clear that the lawful permanent residents from the effected seven countries would also not be included in the ban.[4]

 

How did it come to place?

While President Trump was still a candidate, one of his main campaign promises was a “total and complete shutdown of Muslims entering the United States until our countries representatives can figure out what is going on’.[5]  On January 27th, 2016, only seven days following his inauguration, President Trump issued the Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States”.[6]

 

According to the executive order, the reason for its creation is the responsibility of the President to protect the American people from the terrorist attacks originating by foreign nationals who are admitted to the United States. So, the latter, must effective immediately ban all those who oppose the American constitution and support violent ideologies that may result in acts of bigotry or hatred against the Americans.[7] In order, for this aim to be utilized, the government officials ought to review “the information needed from any country to issue any visa or admission”[8] and ensure that individual is both who he claims to be and that he is not posing a threat for the public security. Within 30 days, from the issue of the executive order, the government officials must present the result of their review to the President as well as to the Secretary of State and the Director of National Intelligence.[9]

 

U.S. Immigration and Customs Enforcement (ICE) Homeland Security I

It is at this point exactly that Muslim ban comes in to play since it constitutes a measure that will be effective until the review is completed and whose purpose is to ensure that the American people are protected from any possible terrorist attacks in the meantime. It is worth mentioning, at this point, that while the content of the executive order is quite strict and clear regarding to what it is envisioned, the seven Muslim-majority countries upon which the order applies are not mentioned explicitly. Instead, section 217(a) (12) of the Immigration and Nationality Act and 8 United States Code section1187(a) (12) on visa waiver program for certain visitors, are used as reference on whose countries’ nationals are temporarily banned from entering the U.S.[10] By not mentioning explicitly, the seven Muslim majority countries, the executive order tries to avoid any potential legal problems, by identifying itself more with the national security than the religion of the nationals banned.

Relevant court rulings so far

As it understandable, as soon as the executive order was issued in January, numerous of reactions took place, with the cases filled in the federal courts reaching the 50.[11] Most of the court rulings regarding the Muslim ban, granted a nationwide temporary restraining order which constitutes a type of temporary relief and prohibits significant part of the executive order to come into force.[12]

 

More specifically, the temporary restraining order explicitly forbids the executive branch from taking any actions that will enforce the parts of the executive order regarding the ban upon the citizens of the seven countries to enter the United States and that will limit the acceptance of refugees by prioritizing religious minorities. One of the most characteristic court rulings regarding the Muslim ban has been that of Judge Watson of the United States District Court in Honolulu, in State of Hawaii and Ismail Elshikh v. Donald Trump. While Judge Watson issued, like many other judges, a temporary restraining order blocking the travel ban of the administration, it is the harsh language used in the ruling that made it go viral. He mentioned, among other things, that “the notion that one can demonstrate animus towards any group of people only by targeting all of them at one is fundamentally flawed”.[13] At the same time, Judge Watson emphasized that despite of the latest claims of the administration that the purpose of the order is not to ban entrance based on religion, the statements of President Trump during his campaign regarding this issue combined with the fact that all seven countries banned consist of a 90%-95% Muslim population, have as a result for anyone to conclude that the “purpose of the executive order is at the very least secondary to a religious objective”.[14]

 

Last September, however, the Supreme Court while reviewing the constitutionality of the executive order, decided to temporarily remove any restriction upon the travel ban issued by the administration with only a few people exempted.[15] This ruling prevented, more 20,000 refugees who had obtained promises from refugee-related organizations, from entering the country until the final decision was taken in October.[16] Such a decision was never actually reached, in the meantime, President Trump replaced the then-travel ban version with a new one.[17] The new policy had as a result for the Supreme Court to dismiss the cases in front of it and avoid ruling upon their legality, at least for the time being.[18]

 

Could Theresa May implement something similar?

In case that the United Kingdom wanted to implement a similar travel ban, the situation would turn to be a bit more complicated than that in the United States. Despite the technicalities of just a decision, the one thing that can be said with certainty is that Theresa May cannot, by any means, implement something similar all by herself. More specifically, the U.K is a parliamentary system with the House of Commons and the House of Lords deciding, through voting, on the passage of the bills and the monarch giving the royal assent at the final stage.[19] Theresa May, as the Prime Minister, is part of both the legislative and the executive branch of the government and while she can start a bill by proposing a such a law, it is upon the majority of the Houses-and particularly of the House of Commons- whether that will be realized.[20] A Bill starting in the House of Commons has to go through 3 readings, a committee stage and a reporting stage in both Houses as well as a consideration of amendments before the royal assent.[21]

 

Even in the case, that such a Bill managed to secure the majority of both Houses and became law, it is very possible that it would meet the opposition of the Supreme Court and intense social unrest, especially if we take under consideration the significance of the Muslim community in the U.K. In any case, as long as, the United Kingdom is still a member of the European Union, which enjoys supremacy upon all its Member States, and the European Union Act is in place, the creation of such a rule is practically impossible.[22]

 

Differences in the U.K and the U.S law that would prevent (or enable) this

The most fundamental difference between the U.K and the U.S law is that they constitute different political systems. More specifically, the latter is a presidential system where the President is elected by the people through the Electoral College while the U.K is, as it was already mentioned, a parliamentary system with the Prime Minister staying in office for as long as the political party to which he or she belongs constitutes the majority in the House of Commons.[23] The fact that the U.S is based on such a system, applies on the case of the travel ban, means that the American President has more powers vested on him that the Prime Minister of U.K.

 

More specifically, the President is the commander in chief of the country and can issue executive orders which are mainly directives addressing the organs of the Federal Government and deriving their legal authority from the constitution or other statutes.[24] While this may give the impression that the President is unstoppable in passing any kind of law that he wishes to, the “check and balances” system is limits his powers in a significant way. Any kind of law or order that seems to contradict the cornerstone of the U.S- the constitution- will be extremely difficult or impossible to be considered legally binding by the Supreme Court and the same time the Congress makes it particularly difficult for legislation to pass.[25]

 

The Prime Minister of the United Kingdom, on the other side, while in theory, can also reach similar decisions, since the passage of Bills requires a simple majority of the seats in Parliament, in practice such a procedure is quite lengthy and will most probably encounter numerous obstacles and oppositions, with the most prominent one being that of the European Union.[26] So, while it seems that in the U.S system the travel ban could be passed faster through an executive order and that in the U.K system while it may take a bit longer, it is a certainty that such a prohibition can be utilized as long as the political party constituting the Parliamentary majority can decide upon anything, the reality is quite different. The system of checks and balances allows the other branches to ensure that the executive is acting according to both the constitution and the rule of law. Finally, the fact that states are also Members of international treaties has an effect as well on how easy it would be for them to arbitrarily decide upon such issues[27].

 

There is no doubt that the terrorist attacks around the world have become extremely frequent the last two years.  These incidents however, cannot be used as an excuse for people to be discriminated and banned from entering any country, just because they happen to share the same religion with some of the people responsible of these atrocious acts. As history has taught us, religious and ethnic generalizations of this kind have always led in far more catastrophic results than they ones they supposedly tried to prevent in the first place. With 2018, around the corner, we should keep in mind the efforts and fights of the previous generations to accept each other regardless of our ethnicity, religion or gender. If unfairness is allowed, to enter our civilization, then our lives will be determined by a veil of uncertainty similar to the one dominating the very dark periods that we thought were behind us long time ago.

 

[1] BBC News, 'Trump's Executive Order: Who does travel ban affect?' (BBC News, 10 February 2017) <http://www.bbc.co.uk/news/world-us-canada-38781302> accessed 19 November 2017.

[2] Ibid.

[3] Dan Merica, 'How Trump's travel ban affects green card holders and dual citizens?' (CNN Politics, 30 January 2017) <http://edition.cnn.com/2017/01/29/politics/donald-trump-travel-ban-green-card-dual-citizens/index.html> accessed 19 November 2017.

[4] Ibid.

[5] BBC News, 'Trump's Promises Before and After the Election' (BBC, 19 September 2017) <http://www.bbc.co.uk/news/world-us-canada-37982000> accessed 19 November 2017.

[6] 82 FR 8977.

[7] Ibid.

[8] 82 FR 8977.

[9] Ibid.

[10] Ibid.

[11] Tom Mccarthy, 'A timeline of Trump’s travel ban: what's happened, and what's next' (They Guardian, 10 February 2017) <https://www.theguardian.com/us-news/2017/feb/10/trump-travel-ban-timeline-washington-supreme-court> accessed 19 November 2017.

[12] Legal infromation institute, 'Temporary restraining order' (Cornell Law) <https://www.law.cornell.edu/wex/temporary_restraining_order> accessed 19 November 2017.

[13] Hawaii v. Trump, No. 17-15589 (9th Cir. 2017).

[14] Ibid.

[15] Emily Shugerman, 'Supreme Court lifts restriction on Trump 'Muslim ban', barring 24,000 people from entering US' (Independent, 11 September 2017)<http://www.independent.co.uk/news/world/americas/us-politics/muslim-ban-trump-supreme-court-restrictions-refugees-lifted-scotus-blocked-a7941551.html> accessed 19 November 2017.

[16] Ibid.

[17] The Guardian, 'US Supreme Court Dismisses Challenge to Trump Travel Ban' (The Guardian, 11 October 2017) <https://www.theguardian.com/us-news/2017/oct/11/supreme-court-trump-travel-ban> accessed 19 November 2017

[18] Ibid.

[19] U.K Parliament, 'How Parliament works' (Www.parliament.uk, 19 November 2017) <http://www.parliament.uk/about/how/> accessed 19 November 2017.

[20] Ibid.

[21] Ibid.

[22] European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01>accessed 19 November 2017

[23] Aalt-Willem Heringa and Philipp Kiiver, Constitutions Compared (3rd edn, Intersentia Ltd 2012).

[24] Ibid.

[25] Ibid.

[26] Aalt-Willem Heringa and Philipp Kiiver, Constitutions Compared (3rd edn, Intersentia Ltd 2012).

[27] Ibid.

Article by Elizabeth Ntilo