Travel Ban Could Face Court Challenge Based on 1965 Immigration Act

Feb 1, 2017


President Trump has signed seven executive orders and 11 presidential memos since Inauguration Day, including the order that restricts travel into the United States from seven Muslim-majority countries.

On this politics day edition of River to River, Ben Kieffer talks with University of Northern Iowa political scientists, Donna Hoffman and Scott Peters, who offer their analysis of the debate over Donald Trump’s slew of executive actions, including the contentious travel ban.

Hoffman says that the rollout and crafting of the order was interesting, since top government officials meant to enforce the order were not included in the discussion.

"What's really unusual here and really quite frankly, troubling, is that... congressional leadership wasn't informed here," she says, "and you had significant secretaries, especially in incoming state, defense, homeland security - they're going to be charged with implementing this, but didn't know about it, or had a very late heads-up about it."

Peters says it's not unimaginable that the order could face a challenge in court. He cites the Immigration and Nationality Act of 1965 that determined "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence."

"As it pertains to immigration in particular, not just the issuance of run-of-the-mill visas, but immigration - that part of the order could very well be illegal under that 1965 statute," he says. "The religious test could also be illegal. There's certainly question over how much those protections apply to foreign aliens living abroad, but it's quite possible that effectively requiring a religious test could violate the establishment clause of the constitution."

During the hour, they also discuss President Trump's nomination of Neil Gorsuch, a federal appeals court judge, for the U.S. Supreme Court.