President Trump's Executive Order on the U.S. Refugee Admissions Program

During the first Trump Administration, there were three iterations of the travel ban. Just as one version got to the Supreme Court, it lapsed, and another version came shortly thereafter. This strategy frustrated the litigation, and made it tougher to get a final judgment. President Trump’s new order on the U.S. Refugee Admissions program will likely follow a similar pattern.

First, President Trump invokes Section 1182(f), the statute at issue in the travel ban. He deems the entry of all refugees to be detrimental to American interests. And he orders the denial of their entry.

Sec. 3. Realignment of the U.S. Refugee Admissions Program. (a) I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that entry into the United States of refugees under the USRAP would be detrimental to the interests of the United States. I therefore direct that entry into the United States of refugees under the USRAP be suspended — subject to the exceptions set forth in subsection (c) of this section — until a finding is made in accordance with section 4 of this order. This suspension shall take effect at 12:01 am eastern standard time on January 27, 2025.

The order goes into effect one week after the inauguration. This provides for a pre-enforcement challenge–a bit more orderly than the travel ban order that went into effect by surprise. And the order remains in effect until Trump makes some future finding (see below). Unlike the travel ban, which was indefinite, this order has some theoretical end point. This fact will aid in the litigation.

Second, there is not a categorical ban. Trump allowed for the exercise of prosecutorial discretion. In theory, at least, some refugees can be admitted, so long as they do not pose a threat to American interests.

(c) Notwithstanding the suspension of the USRAP imposed pursuant to subsections (a) and (b) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit aliens to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such aliens as refugees is in the national interest and does not pose a threat to the security or welfare of the United States.

Third, there is a ninety day clock. In theory at least, in three months, there will be a careful review which can be used to support the policy.

Sec. 4. Resumption of the U.S. Refugee Admissions Program. Within 90 days of this order, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit a report to the President through the Homeland Security Advisor regarding whether resumption of entry of refugees into the United States under the USRAP would be in the interests of the United States, in light of the policies outlined in section 2 of this order. The Secretary of Homeland Security, in consultation with the Secretary of State, shall submit further reports every 90 days thereafter until I determine that resumption of the USRAP is in the interests of the United States.

It may take about three months to get this case up to the Supreme Court. Just as it gets there, the Secretary of Homeland Security will release a report, which will likely force the Supreme Court to remand the case to the District Court, with instructions to consider the new policy. This structure will make it very hard to obtain a final judgment. And I think this structure reflects lessons learned from the travel ban litigation.

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