On January 27, 2017, President Trump signed an executive order titled “Protection Of The Nation From Foreign Terrorist Entry Into The United States,” (EO) barring foreign nationals from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days, and if refugees, for 120 days except for Syrian refugees whose entry is suspended indefinitely.
As set forth below, however, the EO is temporarily blocked nationwide and people previously barred are again allowed to continue entering the United States. It is expected that the Administration will issue a new order.
Washington State and Minnesota Sue Administration to Void EO
On January 30, 2017, the State of Washington filed in Seattle District Court a complaint against Donald Trump, et al. seeking declaratory and injunctive relief invalidating portions of the EO barring foreign nationals and refugees entry into the U.S.: generally EO Section 3(c); and Sections 5(a)-(c),(e).
On February 1, 2017, State of Minnesota joined Washington State as plaintiff.
On February 3, 2017, Judge James Robart granted a nationwide temporary restraining order (TRO) sought by the States in an emergency motion.
The purpose of the TRO was to preserve the status quo prior to the EO before the court holds a hearing on a motion for preliminary injunction (court order prohibiting parties from acting until conclusion of trial).
Government Appeals TRO in 9th Circuit Court of Appeals
On February 9, 2017, the 9th Circuit Court of Appeals upheld the TRO.
The 9th Circuit Court rejected that the President’s decision to suspend admission of any class of aliens is not reviewable by courts. Moreover, the Court indicated that the government did not show that it will likely succeed on the merits to demonstrate that the EO did not violate due process rights of people whose visas were revoked in transit; the government did not show that anyone from the seven nations identified in the EO had committed terrorist acts in the United States.
President Trump declared that he will appeal the 9th Circuit decision to the Supreme Court and later the administration indicated that they are drafting a new order. Additionally, according to a senior White House advisor, the Trump administration may also be working on an executive order to limit foreign labor.
In the end, the TRO is a temporary block of the EO, and the States’ case still remains to be heard on the merits.
But notably, in the TRO, Judge Robart wrote that the TRO was appropriate because the States “have shown that they are likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest.”
Specifically, Judge Robart found that the States showed the EO adversely affects their residents in areas of employment, education, business, family relations and freedom to travel; States themselves are harmed by the EO based on effect on operations and missions of their public universities and institutions of higher learning, and injury to the States’ operations, tax bases and public funds.
Impact on Health Care
Hospitals and academic medical centers have expressed serious concerns about the broad stroke of this executive order given that many information technology specialists, residents, medical researchers and scientists come from the seven nations from which President Trump has barred foreign nationals.