After the protests comes the real work

Photographer: Spencer Platt/Getty Images

There's No Quick Fix to Trump's Immigration Ban

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The high-speed cycle of the first 24 hours after President Donald Trump’s executive order banned immigration from seven Muslim-majority countries is giving way to the long, hard slog of legal reality. A State Department memo made public in court proceedings Wednesday reveals that the Trump administration revoked all visas from those countries on Friday, Jan. 27, the day of the order. That revocation, the essence of the immigration ban, remains in place. As a result, the federal judicial orders against the ban are ineffectual -- because no one from the seven countries has been allowed to board a plane to the U.S. since the day the memo was issued.

The lesson for the next four years is brutally clear. Excited resistance was inspiring, and the symbolic image of the courts working after hours to freeze the immigration order will persist. But the actual fight over the effects of Trump’s order, like the rest of his policies, is just getting started. And without slow, patient effort to work within the legal system, the fight cannot be won.

QuickTake Immigration Reform

To understand what’s new about the revealed State Department memo, you have to go back to the lawsuits brought in the hours after the Trump order was announced. The plaintiffs were people who were being held at airports New York’s Kennedy and Boston’s Logan. They had boarded flights and taken off before the executive order was issued on Friday afternoon, but arrived after the order went into effect.

The court in New York ordered the government not to “remove” any of those people, legalese for sending them back to where they had come from. That didn’t apply to people who hadn’t yet boarded flights.

The Boston court order went further. In addition to saying that the government couldn’t detain or deport people who had arrived in the U.S. with valid visas, it also directed Customs and Border Protection to “notify airlines that have flights arriving at Logan Airport of … the fact that individuals on these flights will not be detained or returned based solely on the Executive Order.”

That language was intended to let people with valid visas get on their flights to Logan. In essence, it made Logan a safe port of entry for people from the seven countries who were in possession of valid visas. It was aimed to repudiate the effects of Trump’s order for as long as the order lasted -- seven days to start. Smart immigration lawyers started telling clients stranded outside the U.S. to try to fly to Boston.

But no one arrived. And the State Department memo, which was not known to the plaintiffs’ lawyers or the judges when the court order was issued, explains why. Airlines couldn’t board passengers because their visas had been rendered invalid by the State Department on Friday.

As written, the memo is straightforward enough. Signed by a deputy assistant secretary of state in the Bureau of Consular Affairs, it cites the executive order and “provisionally” revokes all visas from the seven countries except those for diplomats. It also allows for subsequent case-by-case exceptions, as does the executive order.

A State Department representative clarified to Boston’s WBUR that the revocation didn’t affect people already in the U.S. Those people are anyway subject to the jurisdiction of customs, not the State Department.

On its face, the State memo does no more than give immediate effect to Trump’s executive order. The twist is that the State Department didn’t tell the public about it.

The result is that the Boston court order was in effect nullified even before it was issued. It was lawful to enter the U.S. in Boston if you had a valid visa, but you couldn’t have a valid visa because the memo revoked the visas.

Was the State Department order also unlawful? That’s what lawyers will now try to argue to the Boston district court. They would like the court to tell the State Department to make the visas valid again. A judge in Los Angeles has issued an order that seems to do just that, banning the cancellation of valid visas.

But the argument isn’t automatic in Boston. The relevant State Department officials aren’t there -- so it’s not totally clear that the court has jurisdiction over them.

Second, the lawyers need a plaintiff who is harmed by the memo. That should include someone who is in Boston on a student visa and can’t leave lest the visa be revoked. But I can imagine the government saying that any harm done to that person is speculative because he or she might be allowed back in under a special exception allowed by the memo and the executive order. A Boston organization that has invited speakers whose visas have been revoked might possibly also be injured by the memo, although the connection is more tenuous.

And most important, the lawyers will have to convince the court that the order itself is unlawful as applied to their plaintiff. That means getting the judge to say the order is in effect a Muslim ban or a ban based on national origin and violates statutes and/or the Constitution.

These arguments can and must be made. But unlike the emergency court arguments of last weekend, they’ll be made outside the headlines, and after the protests are over.

The same will be true of the struggle against Trump’s policies more broadly. It’s going to be a long, slow war. And it must be fought, or Trump’s policies, like the immigration ban still in place, will prevail.

  1. It also said that the government couldn’t remove “other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.” That may arguably have meant that future arrivals couldn’t be turned back -- but it also didn’t apply to people stuck outside the U.S.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net